Hooson v Corrective Services

[1] HOLMES J.: On 10 December 2004 the applicant was sentenced in the Magistrates Court to three months imprisonment for an offence of breaching bail, while a further, cumulative sentence of six months imprisonment was imposed on him for a number of offences of dishonesty. The latter sentence, however, was suspended after 14 days. The issue here is whether he is presently eligible for conditional release pursuant to s 76 of the Corrective Services Act 2000. That provision permits early release of a prisoner who has been of good conduct and industry on conditions considered appropriate; but eligibility for it depends on the existence of the premises set out in s 76(1):

"A prisoner is eligible for conditional release only if -

(a) the prisoner is serving a period of imprisonment for an offence or offences that the prisoner committed after the commencement of this section; and

(b) the period of imprisonment is 2 years or less; and

(c) the prisoner has served two-thirds of the period of imprisonment; and

(d) the prisoner has not been convicted of an offence committed during the period of imprisonment; and

(e) the prisoner is not being detained on remand for another offence."

[2] The crucial question in the present case is whether the applicant has "served two thirds of the period of imprisonment". On his behalf it is submitted that the relevant period of imprisonment is that which must actually be served by him, that is to say three months with the cumulative period of 14 days. Two-thirds of that period expired on 19 February, and he seeks a declaration that he became eligible for conditional release as at that date. The alternative position, for which the respondent contends, is that the period of imprisonment is nine months, comprising the three months and the further term of six months, notwithstanding that the latter was suspended in large part. If that approach is correct, the applicant's eligibility for conditional release is presently inconsequential, because it will not arise until 10 June; he will already have been released (absent any intervening offending) on 23 March, having served the three months of the first sentence and the non-suspended 14 days of the second sentence.

[3] The term "period of imprisonment" used in s 76 of the Corrective Services Act finds its definition in s 4 of the Penalties and Sentences Act 1992:

"period of imprisonment' means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether -

(a) ordered to be served concurrently or cumulatively; or

(b) imposed at the same time or different times;

and includes a term of imprisonment."

"Term of imprisonment" is defined in the same section as meaning:

"... the duration of imprisonment imposed for a single offence, and includes the imprisonment an offender is serving, or is liable to serve -

(b) for failing to comply with a single order of a court."

[4] Mr Chowdhury argued for the applicant that the "unbroken duration of imprisonment" that the applicant was serving was three months and 14 days imprisonment; at that point the period of imprisonment would be broken by his release in accordance with the suspension of his sentence. It was, therefore, the sum of the three months and the 14 days which was to be regarded as the relevant period of imprisonment for the purposes of s 76. That approach, he submitted, was consistent with the intended ameliorative effect of s 76 in encouraging rehabilitation by early release.

[5] Mr Logan SC, for the respondent, argued to contrary effect that the applicant was sentenced to two terms of imprisonment, one of three months and another of six months, and it was the aggregate of those which constituted the "period of imprisonment". He referred to Smith v Queensland Community Corrections Board[1], which considered the phrase "term of imprisonment" as used in the Corrective Services Act 1988. The expression was defined in that legislation as meaning:

"(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;

and for the purposes of this definition a person is deemed to be serving a term of imprisonment by virtue of a sentence where the person is undergoing imprisonment in default of payment of a fine or for failure to comply with any order of a court."

As may be seen, that definition incorporated both of the concepts of "period of imprisonment" and "term of imprisonment" as they are now defined in the Penalties and Sentences Act; but unlike the definition of "period of imprisonment", it referred to the period a prisoner "is liable to serve" rather than "is to serve".

[6] In Smith the question was whether the applicant's "term of imprisonment" for the purposes of s 175(1)(a)(i)(A) of the Corrective Services Act 1988 (which dealt with the duration of parole) was the sentence imposed on him by the sentencing court, or that sentence as reduced by remissions. McPherson JA regarded the use of the expression "ordered to be served" as indicating that the reference was to the duration of the imprisonment as specified in the sentence rather than the period for which the prisoner was in fact detained.[2] The other members of the court similarly concluded that the "term of imprisonment" was that imposed by the court.

[7] In R v Walton, ex parte Attorney General[3], the Court of Appeal was concerned with what constituted a "term of imprisonment" for the purpose of fixing a parole date, where the prisoner had already spent a period on parole before being sentenced for further offences and having his existing parole order cancelled. The expression "unbroken period of imprisonment" caused some difficulty, because of the gap in custody created by the time on parole. Pincus JA concluded, however, with the concurrence of the other members of the court, that since the notion of liability to serve imprisonment governed what constituted a "term of imprisonment", it was the length of the ordered sentence which was to be taken into account.

[8] The definition of "period of imprisonment" in the Penalties and Sentences Act was considered by the Court of Appeal in Swan v Chief Executive, Department of Corrective Services[4]. The question there was as to the appellant's entitlement to remissions for a period during which he was actually on parole. Fryberg J, in a judgment with which the other members of the court agreed, referred to the reasoning of Pincus JA in Walton. Noting that neither party in the Swan appeal had suggested that the absence of the word "liable" from the current definition of "period of imprisonment" constituted a point of distinction, Fryberg J said that he was content to proceed on the assumption that there was no relevant difference.

[9] Section 151(2) of the Penalties and Sentences Act clarifies the position in relation to remissions where a term of imprisonment is partly suspended; it provides that the remission provisions do not apply to either the imprisonment that must be served before suspension or the remaining suspended term of imprisonment unless there is a breach and the offender is ordered to serve the suspended imprisonment. There is, unfortunately, no equivalent provision to illuminate the position so far as conditional release is concerned.

[10] Application of the definition of "period of imprisonment" in s 4 of the Penalties and Sentences Act to the conditional release provisions presents particular difficulty where two sentences, one of which is suspended, are concerned, principally because of the use of the words "is to serve". Subsection 144(1) of the Act enables suspension:

"If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended."

It is beyond argument, given the language of the sub-section, that the "term of imprisonment" is the head sentence. But the provision goes on to allow the term of imprisonment to be suspended wholly or in part, and s 145 makes it clear that the part which is suspended is to be served only if there is a breach and a consequent order under s 147.

[11] When one turns to the definition of "period of imprisonment" there is some difficulty in saying that the duration of imprisonment that the offender "is to serve" for the suspended term of imprisonment is the entirety of the sentence imposed. If, on the other hand, one reads the expression "is to serve" as meaning "is liable to serve", a different problem presents itself: whether the balance of a suspended sentence which the offender may or may not be called upon to serve in the future forms part of an "unbroken duration of imprisonment", when in that instance there will be (absent offences in custody) a period of release from custody before any breach resulting in service of the suspended part.

[12] I have come to the conclusion that at least for the purposes of the conditional release provisions of the Act (ss 76-81), "period of imprisonment" in a case such as the present must be taken to mean simply the duration of imprisonment which the prisoner is ordered to serve on the two terms, unbroken by any intervening period in which no term of imprisonment is in effect. Thus the expression "period of imprisonment", as it appears in s 76(1)(c), should be construed, where a part of that imprisonment is comprised by a suspended sentence, as requiring the whole of that sentence as imposed to be taken into account. The reason for my preferring that approach lies in the relationship between the definitions of "term of imprisonment" and "period of imprisonment", and the consequences for construction of s 76(1)(c).

[13] The definition of "period of imprisonment" in its final clause includes "term of imprisonment"; in other words, where there is only a single term of imprisonment to be served, that term is also the period of imprisonment. In practical terms, if the applicant in this case had been sentenced only to the term of six months imprisonment suspended after 14 days, it is evident from the language of s 144 that the term of imprisonment would be six months and that term, i.e. the six months, would also be the "period of imprisonment". In that instance there could be no argument that the period of imprisonment referred to in s 76(1)(c) was anything other than six months.

[14] It would be anomalous to say that the notion of period of imprisonment for the purposes of s 76(1)(c) was radically altered merely by the fact that the term of imprisonment happened to be imposed cumulatively on another. The absurdity of that result is demonstrated by the fact that in the present case, on the applicant's argument, having been sentenced to consecutive terms of three months and six months, he would be eligible for release after serving two-thirds of three months and 14 days. But had he been sentenced only to the six months term, that would be the relevant period of imprisonment and he would not be eligible for release before serving four months.

[15] Clearly, a construction which produces such a perverse result is to be avoided. For that reason I take instead the approach I have outlined. I conclude therefore that the application for a declaration must fail. I will hear the parties as to costs.

[1] [2001] QCA 30; [2002] 1 Qd R 448

[3] [1997] QCA 411.

[4] (2004) QCA 159.