Tyler v Tullipan
[2001] QSC 379
•10 October 2001
SUPREME COURT OF QUEENSLAND
CITATION: Tyler v Tullipan & Ors [2001] QSC 379 PARTIES: PHILLIP ALEXANDER TYLER (applicant) AND MARGARET TULLIPAN (first respondent) QUEENSLAND COMMUNITY CORRECTIONS BOARD (second respondent) SOUTH QUEENSLAND REGIONAL COMMUNITY CORRECTIONS BOARD (third respondent) THE CHIEF EXECUTIVE OFFICER OF THE QUEENSLAND CORRECTIVE SERVICES BOARD (fourth respondent) FILE NO/S: S5787 of 2001 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 10 October 2001 DELIVERED AT: Brisbane HEARING DATE: 20 September 2001 JUDGES: Atkinson J ORDER: Application allowed CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – REPEAL – Application for statutory order of review of Board’s failure to process application – where application made for release on home detention under an Act – where Act repealed before determination – whether right for application to be determined under repealed Act had accrued
Acts Interpretation Act 1954, s 4, s 20(2)(b), s 20(2)(c), s 20(2)(d), s 20(2)(e), s.20(3), s 20C(3)
Corrective Services Act 1988, s 86, s 139(1), s 139(2),
Corrective Services Act 2000, s 134(1)(a), s 135(2)(e), s141, s 142, s 143, s 144, s 268, s 273, s 275, s 276
Legislative Standards Act 1992, s 4, s 4(3)(g)
Penalties and Sentences Act 1992, s 157, s 157(2)Abbott v Minister for Lands [1895] AC 425, referred to
Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, referred to
Benson & Ors v Chief Executive, Department of Corrective Services [2001] QSC 159, SC No 734 of 2001, 14 May 2001, referred to
Benson & Ors v Chief Executive, Department of Corrective Services [2001] QCA 303, CA No 5208 of 2001, 27 July 2001, referred to
Continental Liqueurs Pty Ltd v G.F. Heublein and Bro Inc (1960) 103 CLR 422, referred to
Colonial Sugar Refinery Co v Irving [1905] AC 369, referred to
Director of Public Works v Ho Po Sang [1961] AC 901, referred to
Esber v The Commonwealth (1992) 174 CLR 430, considered
Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, referred to
In re Athlumney; Ex parte Wilson [1898] 2 QB 547, considered
Mathieson v Burton (1971) 124 CLR 1, referred toMaxwell v Murphy (1957) 96 CLR 261, considered
McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261, referred to
Newell v The King (1936) 55 CLR 707, referred to
R v Mason and Saunders [1997] QCA 421, referred to
R v Staines [1999] QCA 311, CA No 462 of 1998, 10 August 1999, referred to
Repatriation Commission v Keeley [2000] FCA 532, 28 April 2000, referred toRobertson v City of Nunawading [1973] VR 819, referred to
Williams v Qld Community Corrections Brd [2000] QCA 75, CA No 6237 of 1999, 17 March 2000, considered
COUNSEL: SA Lynch for the applicant
JA Logan SC for the first and fourth respondents
DP O’Gorman for the third respondentSOLICITORS: Jacobson Mahony Lawyers for the applicant
Crown Solicitor for the respondents
On 25 May 2000, Phillip Tyler was sentenced to four years imprisonment. The charges were serious but Mr Tyler pleaded guilty and had strong personal circumstances in his favour. Accordingly, the learned sentencing judge recommended he be eligible for release on parole after serving 18 months of the four years of imprisonment. If he had not been given that recommendation he could not have been considered eligible for release on parole until serving half of his sentence. The recommendation was made pursuant to s 157(2) of the Penalties and Sentences Act 1992 (the “P & S Act”). The term of imprisonment with any recommendation together make up the sentence imposed. As the Court of Appeal held in Williams v Qld Community Corrections Brd[1]:
“A recommendation for early parole is part of the sentence imposed and mitigates the effect of that part of the sentence which imposes the term of imprisonment.”
[1][2000] QCA 75, CA No 6237 of 1999, 17 March 2000, at [25].
At the time he was sentenced, the Regional Community Corrections Boards that considered the release on parole of such prisoners acted in accordance with guidelines made pursuant to s 139(2) of the Corrective Services Act 1988 (the “1988 Act”). Those guidelines provided that a prisoner such as Mr Tyler (with a non-parole period of 30 months or less who had served two thirds of the non-parole component of his sentence) could be considered for other programs which were seen as methods of a staged release of the prisoner into the community. This conformed with one of the basic premises of release of prisoners that prisoners should normally be placed back into the community in a staged process of decreasingly restrictive supervision.
Accordingly, a prisoner who received the sentence Mr Tyler received could be considered for leave of absence (release to work) after serving 12 months of his sentence (being two thirds of the non-parole component).[2] That date was 25 May 2001. He would then be considered for release to home detention after serving 14 months of his sentence (after he had served all but four months of the non-parole component of the sentence).[3] That date was 25 July 2001.
[2]Guidelines to Regional Community Corrections Board, cl 2.1.a.
[3]Guidelines to Regional Community Corrections Board, cl 2.3.b.
Upon sentence, Mr Tyler was advised by employees of the fourth respondent that he was eligible for release to work on 25 May 2001, for home detention on 25 July 2001 and for parole on 25 November 2001, providing he did not commit any breaches whilst in prison and made sufficient efforts at rehabilitation. The Sentence Management Forms generated by the fourth respondent confirmed these dates.
Upon Mr Tyler’s reception to prison he applied himself diligently to courses and programs available to assist prisoners with their rehabilitation. For example, on 3 October 2000, he completed a Certificate of Competency in senior first aid and was deemed competent as a workplace first aid representative. On 10 November 2000, Mr Tyler was awarded a Certificate II in Workplace First Aid (Senior First Aid). On 12 December 2000, he was awarded a Certificate of Achievement for successfully completing a cognitive skills core program. The Exit Report was very positive as to the advances he had made in personal insight and cognitive skills.
Mr Tyler progressed through the correctional system without blemish. He was initially detained in maximum security at Woodford Correctional Centre before being transferred to Borallon Correctional Centre. He then progressed to Westbrook facility on a secure farm before being transferred to the WORC program in camps at Boulia and St George in western Queensland. He successfully completed a substance abuse educational program on 24 May 2001 whilst subject to the WORC program. He has regularly undertaken unsupervised leave of absence since March 2001.
Mr Tyler was unable to apply for release to work because of a serious injury he sustained in June 1998 which is the subject of litigation, but instead he undertook a Work Out Reach Camp (“WORC”) program to assist the community in western Queensland. In accordance with a recommendation made to him by employees of the fourth respondent, Mr Tyler lodged an application for parole and home detention on 30 April 2001. His application shows he is a man of 42 years of age who had a stable family upbringing in Warwick where he now lives with his wife and two young children. He has had a good work history.
He also said in his application, and it appears to be the case, that he has attempted to make his time in prison as productive and positive as possible. As well as attending and completing courses, he complied with all requirements made of him. He received no breaches and warnings. He undertook random drug tests which have all proved negative. His behaviour and attitude have been excellent. He has worked well with supervisors and other prisoners. He sought home detention to be reunited with his family and to take responsibility for his actions.
Margaret Tullipan, the first respondent, is a senior community correctional officer with the fourth respondent. Her duties include assessing prisoners who have lodged applications for parole, home detention and release to work. She prepares assessment reports which, with her recommendation with regard to the application, she forwards for consideration by regional boards such as the third respondent.
Ms Tullipan received Mr Tyler’s application on 30 April 2001. In accordance with her usual procedure, she dated the application on the top right hand corner and then entered the applicant’s details and dated when the application was received in an Application Register. She gave evidence that the fourth defendant had a policy and practice, widely disseminated throughout the prison system, whereby prisoners were encouraged to lodge applications of this nature at least three months before a prisoner’s eligibility date.
As she was required to process a large number of applications, Ms Tullipan says she prioritised applications in order of a prisoner’s eligibility date. If there were a number of applications with the same eligibility date, she processed the applications in order of the date upon which the application was received. In preparing a report for the regional board to consider and to meet the board’s information requirements, she included various documents with her report along with her recommendation. She included such documents as the prisoner’s application and official documents such as particulars of sentence, criminal history reports, transcript of proceedings and verdict judgment records.
A report might take up to six weeks to prepare as a result of various enquiries that need to be made to collate the various documents to be submitted to the regional board. It was her practice to interview a prisoner for the purpose of preparing her report once such documents had been received and reviewed. Once the prisoner was interviewed, it usually took a day or two to prepare the report.
Ms Tullipan normally forwarded the report to the regional board at least 10 days prior to any of its scheduled meetings. In the first half of 2001 the third respondent usually met fortnightly. It had a practice of requiring the receipt of reports in advance of meeting dates so as to permit their collation and dissemination to board members.
Ms Tullipan did not prepare an assessment report for the third respondent in relation to the applicant because, as she swears, there were many other applications which she had to process which had earlier eligibility dates than the applicant who was not eligible for home detention until 25 July 2001.
The last scheduled meeting of the third respondent prior to the 2000 Act coming into force on 1 July 2001 was on 19 June 2001. Ms Tullipan forwarded most of the applications to the third respondent to be considered at this meeting on or about 8 June 2001. The applications considered by the third respondent at its meeting on 19 June 2001 related to prisoners with eligibility dates falling before 30 June 2001. To meet the requirements of the 1988 Act, the practice was that any approvals made by a regional board for an application for parole or home detention had then to be forwarded to and granted by the Chief Executive of the Department of Corrective Services.
As she had not processed all the applications with eligibility dates falling before 30 June 2001 by 8 June 2001, Ms Tullipan continued to interview prisoners with eligibility dates falling before 30 June 2001 to take account of the possibility that the 2000 Act might not be proclaimed on 1 July 2001 as was then expected. She stopped interviewing in about the last week of June 2001 only when it became clear that the 2000 Act would be proclaimed on 1 July 2001. There was no Departmental practice of which she was aware of holding up applications to await the proclamation of the 2000 Act and she did not adopt or follow such a practice herself. She had not forwarded the application and report with regard to the applicant to the third respondent.
The applicant submits that he has a right to have his application for home detention considered by the third and fourth respondents with an eligibility date of 25 July 2001 and that right has not been effectively removed by the 2000 Act. The fourth respondent, relying on the 2000 Act, has purported to change the date on which Mr Tyler is eligible for home detention from 25 July 2001 to 25 November 2001.
It seems reasonably clear that prior to 30 June 2001 the applicant had a right or at least a privilege[4] under the 1988 Act and the guidelines issued under that Act[5] to have his application for home detention considered and determined and that the date on which he became eligible for home detention was 25 July 2001. The right or privilege arises from the sentence imposed by the Court, the effect of the legislation and guidelines and the information given to him by the fourth respondent. It was more than a mere hope[6] or a power to take advantage of an enactment.[7] The applicant argues that he retains that right or privilege notwithstanding the passage of the 2000 Act.
[4]See McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261 at 280.
[5]1988 Act ss 86, 139(1).
[6]Director of Public Works v Ho Po Sang [1961] AC 901 at 922; cf Brennan J dissenting in Esber v The Commonwealth (1992) 174 CLR 430 at 447.
[7]Abbott v Minister for Lands [1895] AC 425 at 431; Mathieson v Burton (1971) 124 CLR 1 at 12-13, 23; Repatriation Commission v Keeley [2000] FCA 532, 28 April 2000, at [35].
The respondents argue that that right or privilege did not survive the repeal of the 1988 Act and the passage of the 2000 Act. The 1988 Act was repealed by s 275 of the 2000 Act as from 1 July 2001. Since that date, what is referred to as post-prison community based release is now covered by Chapter 5 of the 2000 Act. Post-prison community based release orders[8] include release to work orders[9], home detention orders[10], parole orders[11] and exceptional circumstances parole orders.
[8]2000 Act s 141.
[9]2000 Act s 142.
[10]2000 Act s 143.
[11]2000 Act s 144.
The transitional provisions are found in Chapter 7 of the 2000 Act. Certain appointments are continued under these provisions. The only sections which are relevant to this matter are s 268 and s 273. Section 268 provides that any authority, including a home detention instrument or parole order, that was made under a provision of the 1988 Act which was still in force on 1 July 2001 continues in force according to its terms with any necessary changes. Section 273 provides that:
“A proceeding, including a proceeding for a breach of discipline, started before the commencement of this section under a provision of the repealed Acts, and pending at the date of repeal, may be continued as if it had been started under this Act.”
Section 134(1)(a) provides, so far as it is relevant, that a prisoner may apply, in the approved form, for a post-prison community based release order if the prisoner was sentenced to a period of imprisonment of any length for an offence committed before 1 July 2001. Section 135(2)(e) provides that a post-prison community based release order may start once the prisoner has served half of the period of imprisonment to which he or she was sentenced. However, that subsection is subject to s 157 of the P & S Act.
Section 157 of the P & S Act was itself amended by the 2000 Act. Section 276 of the 2000 Act provides that Schedule 2 amends the Acts it mentions. Schedule 2 provides for an amendment of s 157 of the P & S Act. When the applicant was sentenced on 25 May 2000, s 157, so far as it was relevant to him, provided:
“(2)If a court imposes a term of imprisonment on an offender, it may recommend that the offender be eligible for release on parole after having served such part of the term of imprisonment as the court specifies in the recommendation.”
From 1 July 2001, the section was amended to provide:
“(2)If a court imposes a term of imprisonment of more than 2 years on an offender, it may recommend that the offender be eligible for post-prison community based release only after serving a specified part of the term.”
This amendment, when read with the 2000 Act, has made three significant changes to the sentences which may be imposed by a court: firstly, a sentencing judge can now only make a recommendation with regard to an offender who is sentenced to more than two years imprisonment; secondly, such a recommendation now relates to home detention and release to work and not just to parole; and thirdly, a prisoner sentenced under this regime is no longer eligible for home detention and release to work prior to his or her parole eligibility date.
The last change is the most significant to this case. A prisoner who was sentenced prior to 2001 with a recommendation under s 157(2) was eligible for consideration for home detention and work to release prior to his or her parole eligibility date. This is a privilege that a prisoner such as the applicant had. Has it been effectively taken away from him?
There is a well established presumption that a statute does not act retrospectively. This was expressed by Dixon CJ in Maxwell v Murphy[12] as:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts and events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events.”
[12](1957) 96 CLR 261 at 267.
Furthermore, if there is any ambiguity about the construction, the interpretation should be favoured which avoids retrospective operation of the statute. In In re Athlumney; Ex parte Wilson,[13] Wright J said:
“Perhaps no rule of construction is more firmly established than this – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”
This common law presumption is enshrined in the Acts Interpretation Act 1954.
[13][1898] 2 QB 547 at 551-552.
Section 20 of the Acts Interpretation Act 1954 relevantly provides that:
“(2) The repeal or amendment of an Act does not –
(a) …
(b)affect the previous operation of the Act or anything suffered, done or begun under the Act; or
(c)affect a right, privilege or liability acquired, accrued or incurred under the Act; or
(d)affect a penalty incurred in relation to an offence arising under the Act; or
(e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).
(3)The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.”
This is consistent with what are referred to in s 4 of the Legislative Standards Act 1992 as “fundamental legislative principles” which “are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law.” One of those principles is that legislation should “not adversely affect rights and liberties … retrospectively”.[14]
[14]Legislative Standards Act 1992 s 4(3)(g).
Further, s 20C(3) of the Acts Interpretation Act provides:
“If an Act increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the Act commences.”
It is debatable whether the amendments to the 2000 Act and to s 157(2) of the P & S Act do act as an increase in penalty. It is arguable that they could be so characterised and may therefore apply only to offences committed after 1 July 2001.[15] In the conclusion I have reached, however, it is not necessary to decide this question and I therefore express no concluded view on this point as to which the parties made written submissions after the oral hearing. It would be preferable that this question were to be decided in a case where it is determinative and full argument has taken place.
[15]See R v Mason and Saunders [1997] QCA 421; R v Staines [1999] QCA 311, CA No 462 of 1998, 10 August 1999, with regard to Part 9A of the Penalties and Sentences Act.
This leaves, however, the question of whether the right or privilege which has been identified has been taken away by the 2000 Act. The presumption of the common law and the statutory rule, as set out, is that such a right or privilege can not be taken away retrospectively. Section 4 of the Acts Interpretation Act does however provide that the application of the Act may be displaced, wholly or partly, by a contrary intention appearing in any Act. The respondents in their submissions rely on s 273 of the 2000 Act. That section does not displace the effect of s 20(2)(b), (c), (d) or (3) of the Acts Interpretation Act. It does displace in part the effect of s 20(2)(e) of the Acts Interpretation Act. It provides that the application may be continued as if it were started under the 2000 Act. This obviates the need to start new proceedings for determination under the 2000 Act but it does not mean that all proceedings whenever commenced must be determined under the 2000 Act.
To use the words of the High Court in Esber v The Commonwealth,[16] if it had done so, one would expect that to have been made clear. Chapter 10 of the 2000 Act, for example, which commenced on 24 November 2000 amending the 1988 Act, clearly retrospectively abolishes a right to be discharged on remissions or to take proceedings for failure to discharge a prisoner with remissions in the following terms:
[16](1992) 174 CLR 430 at 437.
“‘207A.(1) This section applies to a failure under this Act –
(a)before the commencement of this section – to discharge a prisoner who was eligible for remission; or
(b)after the commencement of this section – to discharge a prisoner who is eligible for remission.
‘(2) If a proceeding in relation to the failure was started before the commencement of this section, the proceeding may not be continued.
‘(3) No proceeding in relation to the failure may be started after the commencement of this section.
‘(4) Subsections (2) and (3) do not apply if the failure was motivated by malice.
‘(5) This section is a law to which the Acts Interpretation Act 1954, section 20A applies.
‘(6) In this section-
“proceeding” means a proceeding for damages for any damage or loss, including for example loss of liberty.”
Similarly explicit language is used in s 207B to abolish the right to be discharged on remissions.[17]
[17]See Benson & Ors v Chief Executive, Department of Corrective Services [2001] QSC 159, SC No 734 of 2001, 14 May 2001; [2001] QCA 303, CA No 5208 of 2001, 27 July 2001.
There is no such language used with respect to the right or privilege which the applicant has. While he did not have an unconditional right to home detention he had the right to have his application for home detention considered and determined in accordance with his eligibility date. No section of the 2000 Act explicitly took that right away from him. As the High Court said of the right in Esber v The Commonwealth:[18]
“Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely “a power to take advantage of an enactment”.[[19]] Nor was it a mere matter of procedure;[[20]] it was a substantive right.[[21]] Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent”.[[22]] This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.”
[18](supra) at 440-441.
[19]Mathieson v Burton (supra), per Gibbs J; and see Robertson v City of Nunawading [1973] VR 819
[20]See Newell v The King (1936) 55 CLR 707 at 711-712.
[21]See, by way of analogy, Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 175, 178, 185, 194; Colonial Sugar Refinery Co v Irving [1905] AC 369 at 372-373.
[22]Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552; see also Continental Liqueurs Pty Ltd v G.F. Heublein and Bro Inc (1960) 103 CLR 422 at 426-427; Director of Public Works v Ho Po Sang (supra).
It is therefore appropriate to order the third and fourth respondents to forthwith consider and determine the applicant’s application for home detention with his eligibility for home detention being 25 July 2001.
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