Laman v Department of Corrective Services

[1] This is an application for judicial review of the decision of the Chief Executive, Department of Corrective Services, that pursuant to s 75 of the Corrective Services Act 2000 ("the 2000 Act"), the applicant was not eligible for remission of terms of imprisonment imposed on 7 April 1997.

[2] On 3 June 1994, the applicant was convicted on his plea of the following offences: robbery with violence in company, unlawful use of a motor vehicle with a circumstance of aggravation and break, enter and steal. The applicant was sentenced to concurrent terms of imprisonment of 5 years for the first offence and 18 months for each of the other offences, with a recommendation for parole after serving 9 months ("the 5 year term").

[3] On 23 December 1994, the applicant was released to serve a period of home detention pursuant to s 86 of the Corrective Services Act 1988 ("1988 Act"). On 3 March 1995, the applicant was released on parole pursuant to s 165 of the 1988 Act.

[4] On 20 November 1995, the applicant was remanded into custody after his arrest on charges concerning offences committed on 19 November 1995 while on parole. On 14 December 1995 the applicant's parole was suspended pursuant to s 185 of the 1988 Act. The applicant was granted bail on 14 February 1996. His parole suspension was lifted, operative from 21 February 1996 and he was re-released to parole.

[5] On 4 April 1997, the applicant was convicted of offences committed on 19 November 1995, being one count of rape, three counts of aggravated indecent assault, one count of indecent assault and one of assault occasioning bodily harm. He was sentenced on 7 April 1997 to concurrent terms of 7 years' imprisonment cumulative on the 5 year term ("the 7 year term"). The applicant was successful in an appeal against sentence to the extent that a recommendation that the applicant be considered for parole on 7 January 2003 was substituted for the recommendation made by the sentencing judge that he be eligible after 31/2 years.

[6] Upon his conviction on 4 April 1997, the applicant was returned to custody. His parole was cancelled ipso facto pursuant to s 187 of the 1988 Act. It is not in dispute that, by virtue of s 190(1) of the 1988 Act[1], upon the cancellation of parole, none of the time served on parole, (commonly referred to as "street time") counted as time served in respect of the 5 year term. However, the period during which parole was suspended and the applicant was in custody counted as time served

(s 190(1) of the 1988 Act), as did the period of home detention (s 86(11) of the 1988 Act). Further, while the applicant was ineligible for remission in respect of the period up to his conviction on 4 April 1997, he was eligible for and granted remission thereafter on the balance of the 5 year term (see s 21 and s 28 of the Corrective Services Regulations 1989). It is thus common ground that the 5 year term ended on 14 October 1999 (taking into account the "street time" re-served and remissions) and that the 7 year term commenced on 15 October 1999.

[7] The applicant's complaint arises in respect of the respondent's decision that the applicant is ineligible to be considered for remission of the 7 year term as a result of s 75(1)(c) of the 2000 Act. The respondent's decision recorded in a "Sentence Calculation Enquiry" refers to the applicant's "loss of remission due to s 75(c) (sic) of CSA 2000", stating "prisoner released on parole on 21/2/96 therefore under provision of s 75c (sic) CSA 2000 he is not eligible for any type of remission on period of imprisonment".

[8] It seems common ground that the applicant's release date if eligible for and granted remission on the 7 year term is 14 June 2004. The respondent calculates the applicant's "custodial end date" as 14 October 2006 and his "fulltime discharge date" as 3 April 2008 (accounting for time that would have been served if remissions had not been granted on the 5 year term).

[9] The applicant seeks an order, inter alia, quashing or setting aside the decision that he is ineligible for remission, on the grounds that the decision was not authorised by s 75 of the 2000 Act, involved an error of law as to the application of s 75(1)(c), denied procedural fairness in failing to make a decision required to be made under

s 75(2) of the 2000 Act, and was reached by taking into account irrelevant considerations. The applicant contended that he should have been considered for release from custody in June 2004 and seeks an order that he be released forthwith.

[10] On 24 November 2000, Royal assent was given to the 2000 Act, Chapter 10 of which took effect therefrom and amended the 1988 Act by the insertion of s 207B extinguishing a prisoner's eligibility for remission if released on home detention or parole. On 1 July 2001, the remaining provisions of the 2000 Act commenced,

s 275 of which repealed the 1988 Act. Also on 1 July 2001 the Corrective Services Regulations 2001 commenced, s 21 of which repealed the Corrective Services Regulations 1989.

[11] Section 75 of the 2000 Act thus commenced on 1 July 2001. It conferred a new power to grant remission of sentence, the respondent from that date having no power to grant remission under s 21 of the repealed regulations.

(a) the prisoner is serving a term of imprisonment, as defined in this Act, imposed for an offence committed before the commencement of this section; and

(b) the term of imprisonment is 2 months or more; and

(c) during the prisoner's period of imprisonment, the prisoner has not been -

(ii) released under the Corrective Services Act 1988, section 86, to serve a period of home detention; or

(iii) released on parole under an order made under the Corrective Services Act 1988, section 165;

[13] There is no question that s 75(1)(a) and s 75(1)(b) of the Act are met in the present case. The issue in dispute is as to whether the negative criteria of s 75(1)(c) (ii) and (iii) are satisfied. (While the decision was based on s 75(1)(c)(iii) of the 1988 Act, the respondent in arguing the application contended that the ineligibility for remission flowed from both s 75(1)(c) (ii) and (iii)). The applicant was clearly released under s 86 to serve a period of home detention and also released on parole under an order made under s 165 of the 1988 Act. The critical issue in contention is whether the applicant was so released during his "period of imprisonment" within the meaning of that term in s 75(1)(c) of the 2000 Act.

[14] The application thus turns on the meaning of the words "period of imprisonment" in s 75(1)(c) of the 2000 Act. By virtue of the dictionary in Schedule 3 of the 2000 Act, the definition of "period of imprisonment" for the purposes of the 2000 Act is that contained in s 4 of the Penalties and Sentences Act 1992 ("the PSA"), which provides:

"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

[15] The words "term of imprisonment" also bear the meaning ascribed to them by s 4 of the PSA, which states:

"term of imprisonment" means 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."

[16] The applicant contended that the relevant period of imprisonment began on 4 April 1997 when he was returned to custody upon his conviction on that date. He submitted that, as he had not been released on parole since the commencement of that period of imprisonment, he was not disqualified from eligibility for remission by s 75(1)(c) of the 2000 Act.

[17] The applicant submitted that, while for the purposes of s 75 of the 2000 Act, the words "term of imprisonment" refer to the length of time which a person convicted of an offence is liable to serve and thus have a "quantitative certainty", the words "period of imprisonment" refer to "the length of time during which a person convicted of an offence is detained in custody" and therefore have a "qualitative certainty". Accordingly, it was argued that the "unbroken duration of imprisonment is a concept directed to the unbroken length of time during which a person convicted of an offence is detained." In this regard the applicant referred to s 6(1) and s 7(1) of the 2000 Act.

[18] In support of that interpretation of the expression "period of detention" the applicant argued that the "period of imprisonment" was the period during which a "warrant of commitment" authorising a person's detention in custody was in force, so that the period served under the warrant of commitment "defined" the period of imprisonment. It was submitted that where a prisoner is released on parole, the warrant of commitment is suspended or deactivated and that the "duration of imprisonment" is thereby broken.

[19] It was thus submitted that, on 20 November 1995 when the applicant was arrested, the warrant was reactivated, but that it was deactivated upon his being granted bail on 21 February 1995 and being re-released on parole. It was argued that on 4 April 1997, upon his conviction and the imposition of the cumulative 7 year sentence, "a new Calendar (or Warrant of Commitment) came into force, or effectively overwrote the original Warrant, so that firstly, the new period of imprisonment began and secondly, a new sentence calculation was prepared".

[20] It was contended that the new period of imprisonment, taking effect from 4 April 1997, incorporated the balance of the 5 year term (taking into account the street time to be re-served) and the 7 year term. The applicant placed reliance on the decision in R v Quirey [2004] QCA 321 as supporting his contention that in the present case the "period of imprisonment" was calculated by combining with the 7 year term only the balance to be served of the 5 year term rather than the entirety of that term.

[21] The applicant also contended that the policy changes effected by the 2000 Act favoured his approach to the interpretation of the expression "period of imprisonment". As observed in Psaila v Dept of Corrective Services [2005] QCA 16, the 2000 Act effected two major policy changes. Firstly, it excluded the prospect of remissions of up to one-third of a sentence (s 75) and secondly, "street time" was required to be counted as time served (s 152). It is recognised that these policy changes may be seen as involving a "trade off" (de Jersey CJ at [28], Mackenzie J at [61]). The applicant pointed to the unfairness which he argued follows from the respondent's approach to s 75 in the case of a prisoner in the applicant's position; the applicant is ineligible under the 2000 Act for consideration of remission of the 7 year term, while not benefiting in respect of the 5 year term from the policy change in respect of street time being counted as time served. It is submitted that the new legislation was never intended to incur such a result for prisoners in the applicant's position. In this regard, the applicant referred to the Explanatory Notes to the Corrective Services Bill 2000, which at pp 3 and 4 state:

"It is not intended to introduce new measures that will unfairly treat current prisoners. Therefore, it is not proposed to abolish remission provisions for prisoners retrospectively. Current prisoners, other than those who have been convicted of serious violent offences or sentenced to an indefinite period of imprisonment, have access to remission of one third of their sentence, subject to their good conduct and industry, and this will be retained."

[22] Finally, the applicant submitted that the discharge of the applicant's 5 year term represented a transaction past and closed or that upon the applicant's conviction in 1997, all matters relating to his sentence prior to that date represented transactions past and closed (see Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379 at 400).

[23] The respondent argued that the applicant's "period of imprisonment" began on 3 June 1994 and continues until 3 April 2008. The respondent's position was that the applicant's parole did not break the duration of the applicant's imprisonment.

[24] It was submitted that where a person is sentenced only to one term of imprisonment then (in the absence of remission or parole being granted) the term and the period of imprisonment would end on the same day. However, the concept of a "period of imprisonment" it was said addressed the contingency of breaches of parole and further offences giving rise to second and subsequent terms of imprisonment committed during the first term of imprisonment.

[25] The respondent argued that the words "unbroken duration of imprisonment" in the definition of "period of imprisonment" referred to the time during which a prisoner continues to be under a sentence of imprisonment. A break in the duration of imprisonment, it was submitted, occurs when a person is not under a sentence of imprisonment, that is, after the expiration of a full time discharge date. In the present case, it was contended that the applicant's release on parole did not break the duration of imprisonment, the applicant remaining during that period under a sentence of imprisonment.

[26] In support of this construction the respondent relied on s 184 of the 1988 Act, which provided that:

"Prisoners on parole deemed still under sentence

184. Until the parole period has expired as referred to in section 183(1) or a prisoner is otherwise discharged from the term of imprisonment, ... a prisoner released on parole shall be regarded as still being under sentence ... and as not having suffered the punishment to which the prisoner was sentenced ... ."

183.(1) If in relation to a prisoner the parole period has expired without ... an order cancelling the parole and without the commission by the prisoner, ... of an offence for which the prisoner is sentenced to a term of imprisonment whether during or after the expiration of the parole period, the prisoner shall be deemed to have served the prisoner's term of imprisonment or detention and shall be wholly discharged therefrom."

[28] The respondent thus submitted that the applicant, being released under home detention and parole during the operation of the sentence imposing the 5 year term of imprisonment, was so released during his "period of imprisonment" and he thereby lost his eligibility for remission of the 7 year term.

[29] Furthermore, the respondent contended that, because a prisoner who offended under the 1988 Act while on parole did not by virtue of s 190(1) of the 1988 Act have the time spent on parole counted as time towards the serving of the first term of imprisonment, if such a prisoner was sentenced to a second term of imprisonment by reason of the offence committed on parole in excess of the balance of the first term, or cumulative on the first term, then the period of imprisonment was extended and was not broken by the period of parole.

[30] The respondent thus contended that in the present case:

(a) the period of imprisonment commenced on 3 June 1994, when the applicant was sentenced to the 5 year term. That day marked the commencement of both the period of imprisonment and the 5 year term. But for the commission of the further offences, the full time discharge date for the period of imprisonment and the 5 year term of imprisonment was 2 June 1999.

(b) The applicant's period of parole effected no break in the duration of imprisonment, the applicant being deemed by s 184 of the 1988 Act to still be under sentence.

(c) Upon the conviction on 4 April 1997, the applicant's parole was cancelled, resulting in all days on parole being lost, so that the 5 year term ended on 14 October 1999 (taking into account remissions).

(d) As the 7 year term was ordered to be served cumulatively, that term began on 15 October 1999. The full time discharge date was extended to 3 April 2008 (taking into account the time that would have been served if remissions had not been granted on the 5 year term), that date also marking the end of the period of imprisonment.

The meaning of "period of imprisonment" in s 75(1)(c) of the 2000 Act

[31] I do not consider that the decision in Quirey upon which reliance was placed by the applicant provides any assistance. No issue was raised in that case as to the effect, on the calculation of the relevant "period of imprisonment", of the offender having been on parole, it simply being accepted that the period of imprisonment incorporated the combined terms of imprisonment.

[32] However, the meaning of the words "period of imprisonment" as defined in the PSA was recently considered in Swan v Chief Executive, Department of Corrective Services (2004) 145 A Crim R 507 and Hooson v Department of Corrective Services [2005] QSC 22.

[33] One of the issues in Swan concerned the definition of "period of imprisonment" in the PSA in the context of a prisoner's entitlement to remission under s 75(1)(c)(iii) of the 2000 Act. Fryberg J, with whose judgment the other members of the court agreed, observed that the definition in the PSA is similar although not identical to the definition of "term of imprisonment" in s 10 of the 1988 Act, which relevantly provided:

(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;

[34] As is apparent, the s 10 definition incorporated both the concepts of "term of imprisonment" and "period of imprisonment" and unlike the current definition of "period of imprisonment" referred to the period a prisoner "is liable to serve" rather than "is to serve". The s 10 definition was the subject of examination in R v Walton, ex parte A-G [1997] QCA 411, R v Pepper and Cornwell (1999) 104 A Crim R 135 and Smith v Queensland Community Corrections Board [2001] QCA 30; [2002] 1 Qd R 448.

[35] In Walton, the issue concerned what constituted the "term of imprisonment" for the purpose of fixing a parole date, where a period had been spent on parole before the offender was sentenced for further offences resulting in the cancellation of the parole. Pincus JA, with whose judgment the remainder of the court agreed, considered the question of whether there could be said to be an "unbroken period of imprisonment" where "there was no gap in the sentences, but a gap in custody". His Honour held that the governing notion was one of "liability to serve" imprisonment so that if the imprisonment ordered was discontinuously served, because of parole, one ignored the gap and took into account the length of the ordered sentence. (His Honour considered that support for that view could be derived from s 184 of the 1988 Act).

[36] That approach was adhered to in Pepper and Cornwell. It is also consistent with the approach in Smith, where the Court of Appeal considered the words "term of imprisonment" for the purposes of s 175(1) of the 1988 Act. The court held that the expression referred to the term of imprisonment imposed by the sentencing court, rather than the period for which the prisoner was in fact detained. McPherson JA observed that the emphasis in para. (b) of the s 10 definition on the period "ordered to be served" indicated that the primary reference was to the duration of the imprisonment as specified in the sentence imposed.

[37] In Swan, Fryberg J was content to proceed on the assumption that there was no relevant point of distinction with respect to the PSA definition arising from the absence of the word "liable" in that definition, the parties not having contended otherwise. Applying the approach in Walton to the interpretation of the words "period of imprisonment", his Honour proceeded on the basis that the prisoner's release on parole did not break the period of imprisonment and concluded that, since he had been released on parole during his period of imprisonment, there could be no remission under s 75 of the 2000 Act of the cumulative sentence imposed on the prisoner.

[38] In Hooson, Holmes J considered the meaning of the words "period of imprisonment" in the context of s 76(1) of the 2000 Act, which specifies inter alia that a prisoner is only eligible for conditional release if two-thirds of the "period of imprisonment" has been served. After considering authorities such as Swan and Walton, her Honour identified difficulties arising from reading the words "is to serve" in the current definition of "period of imprisonment" as meaning "is liable to serve" for the purpose of s 76 of the 2000 Act. Her Honour concluded 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." (emphasis added)

[39] I respectfully agree with that interpretation of the expression "period of imprisonment". The requirement that the duration of imprisonment be unbroken is not directed to there being no gap in custody, but rather to there being no intervening period where no term of imprisonment is in effect. It is clearly appropriate that the expression as defined bears a consistent meaning throughout the Act. I consider that the interpretation adopted by Holmes J in Hooson for the purposes of the conditional release provisions of the 2000 Act also applies to the expression as used in s 75 of the 2000 Act.

[40] Accordingly, I consider that for the purposes of s 75(1)(c) of the 2000 Act, the expression "period of imprisonment" where a prisoner is ordered to serve two or more terms of imprisonment, encompasses the duration of imprisonment, unbroken by any intervening period, in which no term of imprisonment is in effect. I accept the respondent's submission that, in respect of the terms of imprisonment imposed in the present case, there was, as a result of the operation of s 184 of the 1988 Act to which I have already referred, no intervening period in which no term of imprisonment was in effect and that there was thus no unbroken period of imprisonment from 3 June 1994. I also accept that s 190(1) of the 1988 Act had the effect of extending the "period of imprisonment" as contended by the respondent.

[41] It follows that I do not accept the applicant's submission that the period of imprisonment is defined by the warrant of commitment and actual detention thereunder. I also note that the provisions of s 33 of the 1988 Act (see also sections 6 and 7 of the 2000 Act) are against the applicant's submission. Section 33 of the 1988 Act had the effect that upon being admitted to a prison for detention, a person was deemed to be in the custody of the chief executive and remains in custody until discharged, notwithstanding that the person was at any time not being detained in prison. The position is likewise under the 2000 Act. While s 6(1) of the 2000 Act provides that a person sentenced to a period of imprisonment must be detained in a corrective services facility, that is subject to the provisions of the Act that allow a prisoner to be lawfully outside such a facility (s 6(3)). A prisoner lawfully outside such a facility (such as a prisoner who is subject to a post-prison community based release order or a conditional release order) remains in the chief executive's custody until discharged (s 7(4)).

[42] Nor can I see how arguments based on the policy changes implemented by the 2000 Act or the application of principle concerning "transactions past and closed" assist the applicant in the present case, given the terms of and intention manifest in s 75 of the 2000 Act as to the circumstances of its operation.

[43] On the view that I have taken of the words "period of imprisonment" in s 75 of the 2000 Act, it follows that the applicant's period of release on parole occurred during his period of imprisonment (as did the period of release on home detention) and that the respondent correctly approached s 75(1)(c) of the 2000 Act. The applicant's grounds for review are therefore not made out and the application is dismissed. I shall hear the parties as to any further orders.

[1] Section 190(1) of the 1988 Act, provided that upon the cancellation of a prisoner's parole under

s 187(1), no part of the time between the prisoner's release on parole and his recommencing to serve the unexpired portion of the term of imprisonment (other than the period spent in custody consequent upon parole being suspended) was to be regarded as time served in respect of that term.