Swan v Chief Executive, Department of Corrective Services

[2005] HCATrans 165

[2005] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B37 of 2004

B e t w e e n -

STEPHEN SWAN

Applicant

and

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 11.26 AM

Copyright in the High Court of Australia

MR P.E. SMITH:   If the Court pleases, I appear for the applicant.  (instructed by Roberts & Kane)

MR J.A. LOGAN, SC:   May it please the Court, I appear with MR A.J. MacSPORRAN for the respondent.  (instructed by Crown Law Division, Department of Justice (Qld))

KIRBY J:   Yes, Mr Smith.

MR SMITH:   Your Honours, the applicant’s case is that because he was sentenced before the 2000 Corrective Services Act came into operation on 1 July 2001, he has to spend a lot more time in prison than a person who fortuitously is sentenced after 1 July 2001.  That has led to two classes of prisoners within the Queensland prison system.  It leads, in my client’s case, to having to spend between two and four more years in gaol than otherwise he might have spent, if proper interpretation was made of the relevant legislative provisions for which we contend.

The applicant says the interpretation by the respondent of this legislation is incorrect and, indeed, in the explanatory notes to the relevant Bill of 2000 it was said that:

It is not intended to introduce new measures which will unfairly treat current prisoners.

Therefore, it is not proposed to abolish remission provisions ‑ ‑ ‑

HAYNE J:   That is a statement that sits neatly on the fence, does it not, Mr Smith?

MR SMITH:   It does, your Honour, yes.

KIRBY J:   But, as the President pointed out below, at all times regulation 21 gave a discretion to the commission.  It was not, as in Smith and other cases, a matter of right, and therefore – and I appreciate you say, well, normally, the discretion was exercised, but (a) it was always a discretion, (b) it was not specifically sought to be exercised in this case, and (c) in any case part of your client’s sentence was served on parole, which is not something that appears to call forth, necessarily, the provision of the discretion in favour of your client.

MR SMITH:   No, but the applicant’s position with respect to those issues is, firstly, there was an implied duty on the respondent to consider his remissions position, and, as he understands it, that is often done.  There does not need to be a formal application lodged with the respondent to have the remissions position considered.

Secondly, in respect of this section 207A and B which were the amending sections which purported to take away the right to remissions if someone had spent time on parole, there are two interpretations open.  One is that for all time their remissions were taken away or, alternatively, their remissions on their time on parole were taken away but not in respect of the balance of the sentence, that is, when they went back in and they had to serve the rest of the time of the sentence.  Support for that proposition is that regulation 21 and 28 were never abolished or repealed by 207A or B.

KIRBY J:   They have been repealed now, have they?

MR SMITH:   They have now, your Honour, certainly, by the 2000 Act.

HAYNE J:   But what is the argument?  The presence of the regulations ‑ ‑ ‑

MR SMITH:   The argument is that if one looks specifically at regulation 28, for example, that preserves the right to remissions on the balance of a sentence.  So the argument is that even if the respondent be correct that in relation to the time on parole my client lost remissions, he did not lose them on the balance of the sentence once he had been taken back into custody, so, therefore, he might have lost some time.  I think probably a year out of three, because of the time he had been parole, but he still had to serve four years on that 1993 sentence.

HAYNE J:   But how do you wrestle the words in 207B?  The words present you, do they not, with a rather large hurdle to surmount?

MR SMITH:   I agree with that.

HAYNE J:   How do you wrestle with it then?

MR SMITH:   My wrestling with those words is that the term “is” or “was” “released on parole” is used in 207B(1) and the section is not clear as to whether remissions are lost for all time.  That is one interpretation open, that is, that his eligibility for remission is lost for all time, but it is not clear, in light of the fact that regulation 28 still is extant.

HAYNE J:   So what words are not clear?  Tab 2 of the bundle of legislation is where I am at.  Is that convenient? 

KIRBY J:   It is 32 and 33 of Justice Fryberg’s reasons.

MR SMITH:   Yes, your Honour.  Subsection (3):

the prisoner’s eligibility for remission . . . is taken to have been extinguished when the prisoner was released –

That does not necessarily exclude the proposition that he might still have remissions in light of regulation 28, which is in the bundle as well.

HAYNE J:   But what is extinguished is his eligibility for remission.

MR SMITH:   Yes, that is an interpretation.

HAYNE J:   Well, that is what the words say:

the prisoner’s eligibility for remission . . . is taken to have been extinguished –

Where do we go with the words?  First, is that the area that we would come down to debating?

MR SMITH:   That is the first area and that would appear to be the first hurdle for my client, I accept that.  But the alternative argument raised by my client is that that section came in in November 2000.  He had this right to have his remissions position determined before that and that decision of Justice Douglas of Lynde supports his proposition in that regard.  He ought to have had his remissions position determined before the amending legislation came into force.

KIRBY J:   That is even though you never sought it?

MR SMITH:   That is right, because there is this implied duty of the respondent to consider the remissions position.  That is the second argument.  The alternative argument is one which we have raised in the recent documents filed with the Court, which is this time served on parole.

KIRBY J:   Yes, we have received those.  That is the document of 17 March?

MR SMITH:   That is correct.  The Chief Justice in this decision of Psaila which was handed down on 1 February 2005, which is in tab 6 of the cases bundle provided by the respondent ‑ ‑ ‑

KIRBY J:   Yes.

MR SMITH:   In paragraph [28] – and this is in allowing the appeal against Mr Psaila’s initial success in arguing that his time on parole counted as time served towards his sentence – his Honour said:

There is an additional consideration arising from the two policy changes to which I referred at the outset.  As mentioned there, the new Act effected two major policy changes; the prospect of remissions of up to one‑third of a sentence for an offence committed after that date was excluded, and street time was now to be counted as time served.  I accept the submission made by the appellant –

that is, the Chief Executive –

that the policy changes effected by the new Act may be seen as involving a “trade off”.  It would be surprising were it intended the new Act be construed in such a way as would leave the respondent with the benefit under the old Act of being considered for remissions (removed from the new Act), and also the benefit under the new Act of counting street time (not available under the old Act).

KIRBY J:   Now, I did not quite understand in this document of 17 March how – does your client have before the Court of Criminal Appeal an appeal pending concerning the sentence that was subsequently imposed on him, quite apart from these proceedings, which have proceeded by way of judicial review?

MR SMITH:   That is true.  What happened, your Honour, was this.  He was sentenced by Justice Atkinson in July 2000 to five years cumulative on the 1993 sentence.

KIRBY J:   Yes. And that took into account, did it, the balance of the term that he had to serve when he breached his parole?

MR SMITH:   I do not understand your Honour’s question except to say this ‑ ‑ ‑

KIRBY J:   Well, he was originally sentenced to a period and that set a minimum term.  Whilst out on the street, he committed a further offence.

MR SMITH:   Two, actually.

KIRBY J:   Two.  And that exposed him, did it not, to having the balance of the sentence restored?

MR SMITH:   Yes.  The old Act ‑ ‑ ‑

KIRBY J:   What happened then when it came back before Justice Atkinson?  Did she have the power, in re‑sentencing, to take into account the balance?

MR SMITH:   No, your Honour.  What happened was this.  Under the 1988 Act section 190, ipso facto, cancelled my client’s parole, so there was no need for a court to be involved in re‑sentencing.  It is just by operation of law.

KIRBY J:   And the balance of the sentence is restored?

MR SMITH:   Correct.

KIRBY J:   I see.  Well, that is as it used to be.  That is normal.

MR SMITH:   Yes.

KIRBY J:   Now, tell me why the matter is still potentially before the Court of Criminal Appeal.

MR SMITH:   It is not, your Honour.  What happened was Justice Atkinson imposed the five years for the two further drug offences, cumulative.  There was a successful appeal by my client, where three years was imposed…..normally, five years.

KIRBY J:   That is right.

MR SMITH:   Then last year he took the matter back, by way of re‑opening, before the Court of Appeal and the Court of Appeal realised they had made an error, because under our Penalties and Sentences Act there is a requirement for an appeal court or a court to impose a fresh recommendation for parole if there is an existing recommendation for parole.  So what the Court of Appeal did in, I think it is November last year, was to make a recommendation for my client’s parole on the new sentence, effective from December 2004.

So the Court of Criminal – it is all the Court of Appeal, now, but the criminal appeal proceedings had been disposed of, so there is now no longer pending, as I understand it ‑ ‑ ‑

KIRBY J:   Is that not the time when discretionary elements in respect of remissions should be taken into account?

MR SMITH:   The problem is this, your Honour.  The Court of Appeal has ruled in some cases, which are not here, that this amendment to the Corrective Services Act, which retrospectively abolishes remissions, does not amount to an error in sentencing at the time of sentence.  So a number of prisoners who were in my client’s difficult position have brought re‑openings before the Court of Appeal and judges at first instance, and those applications have been dismissed, because they cannot prove there was a factual error made at the time of sentence.  They have been left with the only remedy available, which is bringing an application for judicial review against ‑ ‑ ‑

KIRBY J:   Yes, but do you not then fly headlong into the two points that were made by the president?  The first is that at the beginning the original sentencing regime was not as of right, as in Smith, but was discretionary, and, secondly, you run into the provisions of 268B for the reasons Justice Hayne pointed out to you, that they are clear.  They may be unfair, as you assert, but they are clear.  And, thirdly, you are really trying to turn this Court into a super Court of Criminal Appeal where we are invited to get into the detailed engine room of the criminal sentencing law of Queensland, and it really is not a proper function of the High Court to do that.

I take into account that courts have said remissions and real sentence are serious matters.  They are serious for prisoners, they are serious for the community and quite a lot of liberty is potentially involved for a lot prisoners who are awaiting resolution of this sort of question, but the normal place for this to be resolved is in the Court of Appeal of Queensland.

MR SMITH:   We cannot do that in Queensland, your Honour.  The courts will not allow prisoners in my client’s position to do so, because of these particular decisions to which I have just made reference, so the remedy has been by way of judicial review.  Whether that is satisfactory or not, I do not pass judgment on that.  Perhaps it is not.  But, really, my client is stuck with this vehicle by which to have at least the Queensland courts analyse or make determinations about his sentencing position.

HAYNE J:   And does he, whichever path is taken, ultimately end up wrestling with the words of 207A and 207B?

MR SMITH:   No, he does not, because my alternative argument, which is raised in this more recent outline, is that section 152 of the 2000 Act now allows for street time to be counted towards a person’s sentence.  That is in tab 4 of my learned friend’s material.  Section 152 provides:

(1)      This section applies if a prisoner’s post‑prison community based release order is cancelled –
 . . . 
(f)       under section 151 because the prisoner was sentenced to another term of imprisonment for an offence committed during the term of the order.

(2)      The time for which the prisoner was released under the order before 1 of the following events happens counts as time served for the prisoner’s period of imprisonment –
 . . . 
(c)      the prisoner committed the offence mentioned in subsection (1)(f).

Has your Honour found that section?

HAYNE J:   Yes.

MR SMITH:   The relevance of that section is section 268 of that same Act, which provides that:

(1)      This section applies to an authority –

(a)      that was made under a provision of the repealed Acts; and
(b)      in relation to which there is a corresponding provision under this Act; and
(c)      that was in force immediately before the commencement of this section.

(2)      The authority continues in force according to its terms, as if it had been made under the corresponding provision of this Act, with the changes necessary –

(a)      to make it consistent with this Act; and
(b)      to adapt its operation to the provisions of this Act.

What Mr Swan’s argument is is that, okay, if 207A and B abolish his remissions position – accept that for the moment – the trade‑off the Chief Justice mentioned in Psaila is that time spent on parole counts as time served.  The corresponding provision to 152 of the new Act is 190 of the old Act, which ipso facto cancelled his parole, and 187 of the old Act says time spent on parole does not count.  The applicant’s submission is that 152 is a corresponding provision to 187 of the old Act and as a trade‑off he has lost his remissions, fair enough.  But that three years, six weeks, I think it was, that he spent on parole should count as time served towards his sentence.

HAYNE J:   Is this an argument that is dealt with in the courts below?

MR SMITH:   It was not dealt with by the Court of Appeal, from which we seek special leave today.  Mr Swan brought a subsequent application after Mr Psaila had won his decision before Justice McMurdo below, arguing the same point.

HAYNE J:   But, so far as it was before the Court of Appeal, this point was not a live issue?

MR SMITH:   It was not, your Honour.

HAYNE J:   And therefore we would have jurisdiction how to entertain that point?

MR SMITH:   Because there are some High Court authorities, such as Heron v The Queen, which says if there could be a substantial grave injustice, an appeal ground may be argued before this Court which was not argued before the court below.

KIRBY J:   Yes, but taking up Justice Hayne’s point, the point was not argued in the Court of Appeal.  You are asking us, without the benefit of the decision of the Court of Appeal in the particular case, to resolve it.  If you are right that this affects other prisoners, then, at least from the point of view of the administration of justice, presumably the point will be raised in the Court of Appeal and the matter corrected.  If it is corrected there, then, though you have lost your opportunity, because it was not raised, it is a matter that could be raised with the parole authorities, presumably, in respect of your client.

MR SMITH:   It could be, your Honour.  The difficulty is ‑ ‑ ‑

HAYNE J:   It is not immediately apparent to me it is even within your application for an order for review.  It may be, but it is not.

MR SMITH:   It is, really, because I think my client applied for a determination that he had finished his gaol time, now.  Whether that be achieved by way of the remissions argument or the street time argument, the end result is the same.  I concede, your Honours, that the matter was not raised specifically before the Court of Appeal in this case, although these provisions – not 152, but section 268A and B were examined.  Our submission really is that the issues of remissions and street time are inextricably linked, because of this trade‑off situation to which the Chief Justice referred to in Psaila.  I have just gone over time, your Honour.

KIRBY J:   No, you are still in your time.  It is when the red one comes on you have to ‑ ‑ ‑

MR SMITH:   Thank you, your Honour.  So my submission is this would be a case where, particularly bearing in mind the length of time it has for matters to get on before the Court of Appeal and ultimately this Court, where time my client is serving in gaol is running out, it would be in the interests of justice for this Court to give special leave on this question, including the question of time served.

KIRBY J:   Let me understand it.  Your client has completed his prison sentence?

MR SMITH:   Yes.  Well, there is debate about that.

KIRBY J:   He is at large?

MR SMITH:   No, he is presently in gaol.  Because of the determinations made by the respondent, his full‑time release date is September 2007 and the 1993 sentence finished in September last year.  If my client is correct in his contentions, he should have been released in either 2002 or February of this year.

KIRBY J:   Yes.  Now, I see the red light is on.

MR SMITH:   Yes.  I hope that I have given a reasonable summary of ‑ ‑ ‑

KIRBY J:   You have done as well as you can with the materials.

MR SMITH:   Thank you, your Honour.

KIRBY J:   Thank you.  The Court does not need your assistance, Mr Logan.

This application concerns the accuracy of the calculation of remissions of sentence in accordance with the then law applicable in Queensland, namely, the Correction Services Regulation 1989 (Qld), regulation 21, and the Corrective Services Act 1988 (Qld).

The applicant complains that the Court of Appeal of Queensland erred in confirming the refusal of the primary judge to hold that he was entitled to the benefit of remissions in his sentence and that such remissions had not been extinguished by supervening legislation, namely, the Corrective Services Act 2000 (Qld) and the Corrective Services Regulation 2001, which repealed the 1989 regulation.

We are unconvinced that the Court of Appeal erred in the unanimous conclusion which it reached based on a close examination of the applicable law.  The principal point which has been urged upon us was not one which was fully canvassed in the Queensland Court of Appeal.

In any case, the foundation for the applicant’s case is a sentencing law that has been overtaken by amendments and the issue in the case is one confined to Queensland law, where the entitlement to remissions was not automatic but discretionary.  Because this Court’s decision affects the liberty of the applicant, we have considered whether a miscarriage of justice has occurred.  It suffices to say that we are not persuaded that it has.  There are no prospects of success were special leave granted.

The matter, although generally of a criminal character, has proceeded as a case of judicial review.  Costs are sought by the respondent.  Is there any reason why costs should not be granted in this Court?

MR SMITH:   Your Honour, in my outline I placed before the Court that it was a matter of importance for a number of prisoners in Queensland.  The judicial review provides a general discretion about costs, obviously.

KIRBY J:   It was exercised against you, I notice, in the courts below.

MR SMITH:   It was, yes.

KIRBY J:   Mr Logan, what has happened to the old principle that the Crown in such matters neither seeks nor asks for costs?

MR LOGAN:   Yes.  Were this, as your Honour has indicated, a matter which was a criminal appeal, then, as instructions I have in a later case today would take one, there would be no costs sought.  This has come up under the Judicial Review Act and ‑ ‑ ‑

KIRBY J:   But it only did that because that was essential to resolve what was essentially a criminal/sentencing issue which is of general importance.

MR LOGAN:   Quite, and in the State court system, section 49 of our Judicial Review Act does intrude upon the ordinary costs follow the event outcome with judicial review cases.

KIRBY J:   But we are told that there is a provision that provides – there is a discretion, of course, for costs.  Is there some special provision in the Judicial Review Act (Qld) that relates to criminal application ‑ ‑ ‑

MR LOGAN:   No, it is general in its application across the whole range of judicial review cases.  It does not distinguish as between criminal and civil.

HAYNE J:   How would that affect us anyway?

MR LOGAN:   Indeed so, section 26 of the Judiciary Act is the governing ‑ ‑ ‑

KIRBY J:   It is substantially a criminal matter.

MR LOGAN:   It certainly touches on the liberty of the subject.  That is our ‑ ‑ ‑

KIRBY J:   Yes.  Do you wish to say anything in reply to that, Mr Smith?

MR SMITH:   I might by submissions, your Honour.

KIRBY J:   Special leave is refused.  Costs have been sought by the respondent.  Costs must be ordered in the case so that the application is refused with costs.

AT 11.52 AM THE MATTER WAS CONCLUDED