Swan v Chief Executive, Department of Corrective Services

[2005] QSC 3

SUPREME COURT OF QUEENSLAND

CITATION:

Swan v Chief Executive, Department of Corrective Services [2005] QSC 003

PARTIES:

STEPHEN SWAN

(applicant)

v

THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES

(respondent)

FILE NO/S:

BS 7421/04

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme, Court, Brisbane

DELIVERED ON:

12 January 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 December 2004

JUDGE:

Douglas J

ORDER:

Application dismissed.  Order the applicant to pay the respondent’s costs of and incidental to the application.

CATCHWORDS:

CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND –Where applicant’s parole revoked by statute because of further conviction and sentence – Whether revocation of parole an authority “in force” immediately before commencement of repealing Act – Whether original authority to hold in prison was “in force” immediately before commencement of repealing Act - Repealing Act’s effect that time served on parole should be treated as time served for the prisoner’s term of imprisonment -  Whether time served on parole by prisoner before repealing Act should be treated as time served for the prisoner’s term of imprisonment.

Corrective Services Act 1988 (Qld) s. 35(1)(b), s. 187, s. 190

Corrective Services Act 2000 (Qld) s. 9(1)(b), s. 141, s. 151, s. 152, s. 268

Drugs Misuse Act 1986, s. 5

Psaila v Department of Corrective Services [2004] QSC 448, distinguished

COUNSEL:

Mr P E Smith for the applicant

Mr M O Plunkett for the respondent

SOLICITORS:

Roberts & Kane for the applicant

C W Lohe, Crown Solicitor for the respondent

1. DOUGLAS J: Mr Swan was sentenced to 7 years’ imprisonment on 8 September 1993. He was released on parole from 21 October 1996 but was returned to custody on 26 August 1999 after being arrested on further charges. He was released on bail on those charges on 15 November 1999 but was convicted of the further offences on 19 July 2000. He was sentenced originally, on 20 July 2000, to 5 years’ imprisonment cumulative on the 1993 sentence. The 5 year term was reduced to 3 years on appeal. His conviction and sentence to another term of imprisonment on those charges had the effect of cancelling his parole from 20 July 2000; see s. 187 of the Corrective Services Act 1988 (“the old Act”).

1. The question raised by his application under the Judicial Review Act 1991 is whether the 3 years 274 days that he spent on parole between 1996 and 2000 should be treated as time served by him under his earlier 1993 conviction. The practical difference between the parties’ arguments is that, on his case, he should have been released already. On the respondent’s case his full time discharge date will be 25 March 2007.

1. Until the commencement of the Corrective Services Act 2000 (“the new Act”) there would have been no argument available to the effect of the applicant’s submissions. Section 190 of the old Act provided relevantly that, upon cancellation of a prisoner’s parole, the original authority for the prisoner’s imprisonment or detention should again be in force and no part of the time between the prisoner’s release on parole and his recommencing to serve the unexpired portion of his term of imprisonment should be regarded as time served in respect of that term.

1. On 1 July 2001 the new Act came in to force and introduced a change of policy in this area. By s. 152, if a post-prison community based release order is cancelled because a prisoner contravenes a condition of the order, the time for which the prisoner was released under the order before the contravention is treated as time served for the prisoner’s period of imprisonment. By s. 141 parole is a type of post-prison community based release order. Mr Smith, who appeared for Mr Swan, submits that s. 268, a transitional provision of the new Act, operates so as to apply s. 152 of the new Act to Mr Swan’s circumstances.

1. To make good that submission he needs to establish that the cancellation of Mr Swan’s parole, effected by s. 187 of the old Act “ipso facto” after his convictions and sentence on 19 and 20 July 2000, was an “authority” made under a provision of that Act in relation to which there is a corresponding provision under the new Act and which was in force immediately before the commencement of s. 268 on 1 July 2001. The provision of the new Act on which he relies as corresponding to s. 187 of the old Act is s. 151. It provides that a prisoner’s post-prison community based release order is automatically cancelled if the prisoner is sentenced to another term of imprisonment for an offence committed during the term of the order. If the cancellation of Mr Swan’s parole effected by s. 187 of the old Act is such an authority then Mr Smith submits that s. 268(2) causes it to continue to have effect according to its terms as if it had been made under the corresponding provisions of the new Act with the changes necessary to make it consistent with and to adapt its operation to the provisions of the new Act. That has the effect, he submits, that s. 152 applies to count Mr Swan’s period of release as time served for his period of imprisonment.

1. It will be useful to set out the full text of s. 268:

“268 Authorities
(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.
(3) In this section—
‘authority’ means an approval, authorisation, certificate, classification, decision, declaration, determination, direction, delegation, guideline, home detention instrument, leave of absence instrument, parole or other order, permit, policy, procedure, register, transfer instrument or other authority.”

1. The principal issue is whether the cancellation of Mr Swan’s parole effected by s. 187 continued to be in force until immediately before 1 July 2001. Similar issues were considered by McMurdo J in Psaila v Department of Corrective Services [2004] QSC 448 but in a different factual context. The applicant in that case, Mr Psaila, had failed to comply with a condition of his parole order by not reporting as directed. His parole had been cancelled by a Community Corrections Board which issued a warrant for his apprehension on 31 August 2000. Later, on 28 October 2002, a magistrate issued another warrant pursuant to which Mr Psaila was arrested in Victoria on 6 May 2003. On his Honour’s analysis it was the continuing effect of the Board’s cancellation order that permitted the issue of the magistrate’s warrant, so that the cancellation order was an authority that was in force immediately before the commencement of s. 268 on 1 July 2001; see at [17]-[23]. His Honour then went on to say at [27]-[28] as follows:

“[27] ... In my conclusion, s 268 has the effect that a cancellation order still in operation at the commencement of the current Act, continued to have effect in all respects as if made under the corresponding provision in s 150 or s 151, and that it is to be treated as a cancellation order under that provision so as to engage s 152. The alternative interpretation, which I reject, is that s 268 operates to have the cancellation order treated for some purposes and for some provisions of the current Act as if made under it, but not for the purpose of the operation of s 152.
[28] The result is that s 152 applies to the applicant’s case, and the time for which the applicant was released on parole before he contravened the relevant condition of his parole counts as time served for his period of imprisonment pursuant to s 152(2).”

1. Here, Mr Swan was returned to custody under the old Act pursuant to the original authority for his imprisonment because of the effect of s. 187 and s. 190 on his subsequent convictions and sentence to imprisonment, all of which occurred before 1 July 2001. Under the old Act a person could not be admitted to and detained in a prison unless the corrective services officer in charge of the reception of prisoners at the prison was given, among other possible authorities for the person’s detention, a calendar made out pursuant to the Criminal Practice Rules 1900, order 8 rule 3 containing the name of the person and particulars of the judgment pronounced upon the person; s. 35(1)(b); see under the new Act s. 9(1)(b).

1. The relevant calendar here recorded Mr Swan’s conviction for the offence of trafficking in dangerous drugs contrary to s. 5 of the Drugs Misuse Act 1986. It came into force again by the operation of s. 190 of the old Act. Section 187 of the old Act operated “ipso facto” so as to cancel Mr Swan’s parole from 20 July 2000 but the authority that continued to operate so as to authorise his imprisonment beyond that date up to and beyond 1 July 2001 was the calendar that was again “in force” under s. 190 of the old Act. It was not an authority made under a provision of the old Act, unlike the cancellation order in Psaila.  Its authority stemmed from the penalties prescribed for breach of the Drugs Misuse Act.

1. Accordingly there was no authority “in force” immediately before 1 July 2001 that had all the characteristics required by s. 268(1). The reliance on the effect of s. 187 fails to meet the requirements of s. 268(1) on at least two counts. The cancellation of parole effected by s. 187 did not continue to be “in force” immediately before 1 July 2001. Its effect had been spent by then. Nor was the calendar that was in force to authorise the applicant’s imprisonment immediately before 1 July 2001 made under a provision of the repealed Acts. Mr Swan was back in custody under the original authority for his imprisonment which was again in force and had the consequences set out in s. 190.

1. This conclusion makes it unnecessary for me to consider whether a statutory provision such as s. 187 is properly described as an “authority” for the purposes of the definition of s. 268(3) or whether the contrast between the effects of s. 152 of the new Act and s. 190 of the old Act allows s. 151 and s. 187 to be treated as corresponding provisions. The consequence of my conclusions is that the application should be dismissed with costs.