Smith v Queensland Community Corrections Board [2001] QCA 30

[1] McPHERSON JA: I agree, for the reasons given by Davies JA, that the expression "term of imprisonment" in s 175(1)(a)(i)(A) of the Corrective Services Act 1988 means the term of imprisonment imposed by the sentencing judge, and not the duration of the period for which the prisoner is in fact detained. That is, as has been accepted, the "natural prima facie meaning" of those words: Winsor v Boaden (1953) 90 CLR 345, 347; as well as being their "ordinary" meaning: Husson v Slattery [1982] 3 NSWLR 389, 393.

[2] Context may, of course, show that a different meaning is intended. However, far from that being so here, s 10 of the Act tends to confirm the primary meaning. The expression "term of imprisonment" is there defined to mean:

(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 served at the same time or different times."

The emphasis in para (b) on the period "ordered to be served" shows, to my mind, that the primary reference is to the duration of the imprisonment that is specified in the sentence at the time it is finally fixed and imposed, irrespective of concessions that may subsequently be earned or granted and which may shorten the period of incarceration. Considered at that time, the prisoner is "liable" to serve the full period of imprisonment that has been fixed, whether or not later events intervene to reduce the time in fact spent in prison.

[3] The appeal should therefore be allowed and the application dismissed. The respondent should be ordered to pay the appellant's costs of both the appeal and the application below. I would, however, order that the respondent receive an indemnity certificate under the Appeal Costs Fund Act. The question of law that was raised has received a different answer from two other single Judges of the Supreme Court. It is one of some public interest and importance, which it was proper to bring to the Court for determination.

[4] DAVIES JA: The question which arises in this appeal is whether the phrase "term of imprisonment" in s 175(1)(a)(i)(A) of the Corrective Services Act 1988 means term of imprisonment imposed by the court as the appellant contends or whether it means that term reduced by all remissions "granted" pursuant to Part III of the Corrective Services Regulations as the learned primary judge held and the respondent contends. The question arises in the following way.

[5] The respondent was sentenced to a term of 12 years imprisonment on 2 August 1989. That term as imposed therefore expired on 1 August 2001. He was granted parole on 11 August 2000 which took effect on 21 August 2000. If the former construction was correct that parole and his sentence would expire on 1 August 2001 as the parole order states. If the latter construction were correct it was contended and held that they would have expired on 25 November 2000 because the respondent had been "granted" a total of 249 days remission pursuant to the above Regulations.

[6] The decision upon this question therefore determines the respondent's right to be discharged from his parole and his sentence. It may also have an important bearing on the rights of other prisoners who have been or may be granted parole.

[7] Section 175 is relevantly in the following terms:

(i) be under the supervision of a community correctional officer -

(A) if the prisoner is a prisoner mentioned in section 165(1)(a) - for such period, that does not go past the end of the prisoner's term of imprisonment as, is determined by the board making the order; or

(B) if the prisoner is a prisoner mentioned in section 165(1)(b) - for the period that the prisoner was directed to be detained;

[8] The question is primarily one of construction of the phrase "term of imprisonment" in the context of s 175; that is, of Part 4 of the Act headed "PAROLE". In s 175(1) itself, in par (a)(i)(B) the period during which the prisoner must be under the supervision of a community correctional officer is "the period that the person was directed to be detained", that is, the period fixed by the judge pursuant to s 165(1)(b). It would be surprising if "term of imprisonment" in par (a)(1)(A) were not also the term fixed by the judge. It is also unlikely that the period referred to in par (A) could be one which, though required by the section to be specified in a parole order, could not always be definitively determined at the date when a parole order was made. Yet the effect of the regulations referred to below is that the date on which entitlement to early release on remission is definitively determined will often be only shortly before the date of that release which will often be well after the earliest date on which a parole order may be made.

[9] The context includes s 165(1)(a) and (b) the provisions which provide the circumstances for the operation of s 175(1)(a). Section 165(1) provides:

"(1) Subject to section 166, the Queensland Community Corrections Board may, by written order, direct that -

(i) is serving a term of imprisonment (including a term of life imprisonment); or

(ii) is serving a term of imprisonment imposed under the Penalties and Sentences Act 1992, section 173(1)(b); or

(b) a prisoner who is being detained in an institution for a period fixed by a judge under the Criminal Law Amendment Act 1945, part 3;

be released on parole on the date specified in the order."

[10] Although the present respondent plainly came within s 165(1)(a)(i), other parts of that subsection are relevant to the question of construction. The phrase "term of imprisonment" in par (a)(ii) means term of imprisonment imposed by the court for that is the only reasonable inference to be drawn from the phrase "term of imprisonment imposed under the Penalties and Sentences Act ...". The period referred to in s 165(1)(b) is also one which was fixed by the court; "fixed by a judge under the Criminal Law Amendment Act ...". It is unlikely therefore that the phrase "term of imprisonment" in par (a)(i) has any different meaning.

[11] Similarly s 173 refers to a prisoner being "sentenced to another term of imprisonment". It is plain that here the phrase is used in the sense contended for by the appellant. And it appears to be used in the same sense in s 172, s 183 and s 187.

[12] The factors to which I have referred so far show, in my opinion, that s 175 and its context support the appellant's contention. So also, in my opinion, does the definition of "term of imprisonment" in s 10. It is there defined to mean:

(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;

[13] Paragraph (b) of this definition is irrelevant to the present case for it is concerned only with the situation where there are a number of sentences ordered to be served concurrently or cumulatively. But paragraph (a), in my opinion also supports the appellant's contention for it speaks of the term of the sentence which I would construe to mean the duration of the sentencing order imposed by the court.

[14] Mr Sofronoff QC for the respondent attempted to answer the apparent logic of this by pointing to the fact that, had the respondent remained in prison until November 2000, instead of electing to accept a grant of parole on 21 August 2000, he would have been entitled to be discharged on 25 November 2000. This date derives from a document headed "Offender Management Information System" relating to the respondent and dated 26 August 1999. That document calculated that the respondent would become entitled to remissions of 35 days for overtask marks pursuant to reg 23, 203 days pursuant to reg 24 and 11 days pursuant to reg 25, a total of 249 days. It is plain however from the date of this document that some of these remissions were calculated on a hypothetical basis. For example the remission pursuant to reg 24 assumed that the respondent would remain a prisoner who held the security rating of minimum security or open security and who was of good conduct and industry until 15 November 2000. And the remissions granted pursuant to reg 25 included remission for Christmas Day 1999 which had not yet been served under the term.

[15] The regulations in Part III of the Corrective Services Regulations relating to remission, although they do not say so specifically, appear plainly to be directed to remissions granted to a person serving a term of imprisonment in custody. Thus overtask marks pursuant to reg 23 can be granted only to a prisoner who works in excess of reasonable working hours, is entrusted with an important and exacting task or displays above average application to trade work, all implicitly whilst working within the prison system. Similarly reg 24 applies only whilst a prisoner is holding a particular security rating and is of good conduct and industry, again plainly within the prison system.

[16] Mr Sofronoff did not contend that a prisoner could accumulate remissions whilst on parole; and in doing so necessarily accepted that at least some of the remission provisions did not operate whilst a prisoner was on parole. But he did contend that remission eligibility earned whilst in prison enured after the prisoner had been granted parole. It followed from this, he submitted, that the term of imprisonment imposed by the court could be shortened by remissions, even whilst the prisoner was on parole.

[17] In the first place the contention that remission eligibility continues whilst a prisoner is on parole appears to be inconsistent with the scheme of the Act and the Regulations. Release on parole under Part 4 of the Act and remission pursuant to Part III of the Regulations appear to operate as alternative, mutually exclusive schemes for release from custody. The regulations to which I have referred and reg 27 which envisages forfeiture of remissions for misconduct in a decision made before the date on which the prisoner might ordinarily have been discharged indicate that "discharge" means discharge from custody, not discharge from parole; see also the definition of "discharged" in s 10.

[18] Secondly and more importantly the contention is inconsistent with the construction which the phrase "term of imprisonment" would ordinarily be given in the context in which it appears in s 175(1)(a)(i)(A).

[19] For these reasons, in my opinion, the appeal must succeed. I would therefore allow the appeal with costs, set aside the order appealed from and, in lieu, order that the respondent's application be dismissed with costs.

[20] THOMAS JA: This appeal turns on the construction of "term of imprisonment" in s 175(1)(a)(i)(A) of the Corrective Services Act 1988. I agree with the construction proposed by Davies JA and McPherson JA, namely that "term of imprisonment" means the term that is imposed by the sentencing court.

[21] Much of the respondent's argument below and here was based on the binding quality of remissions once they take effect in favour of a prisoner. As observed by Mason J in Kelleher v Parole Board (NSW)[1], remissions of sentence, originally derived from the royal prerogative of mercy, were ordinarily regarded as cancelling or reducing the sentence. However the remission system is now the creature of various statutory regimes in the various jurisdictions throughout Australia, and it is to the relevant statutes that regard must be had in identifying what is the sentence and what is the effect of a grant of remission. The statutory schemes considered in a number of New South Wales cases (Husson v Slattery[2]; R v Blucher[3]; Kelleher v Parole Board (NSW) (above) and Smith v Corrective Services Commission of New South Wales[4]) are quite different from the Queensland scheme which was considered in such cases as Felton v Queensland Corrective Services Commission[5] and McCasker v Queensland Corrective Services Commission[6]. The New South Wales decisions do not afford authority for the proposition that the "sentence" referred to in s 175 of the Corrective Services Act 1988 is cancelled or suspended by a remission, or that the term of imprisonment comes to an end on the date when the remission takes effect.

[22] It may be accepted that in Queensland once a remission has taken effect by means of release on remission, there is no provision for returning the prisoner to prison, and the prisoner has no further obligation to serve any part of the balance of the term. In this respect the relevant provisions are quite unlike those relating to parole, the objective of which is to keep the prisoner under an obligation which may secure his returning to prison.

[23] The primary provisions dealing with remission are notably ss 130(e) and 208 of the Corrective Services Act 1988 and part 3 of the Corrective Services Regulations 1989. These provide various methods by which remissions may be earned and the basis upon which they are to be granted by the Commission. As mentioned above, there is no power enabling the Commission to require a prisoner to return to prison after a grant is made. It does not follow however that upon release on remission the sentence imposed by the court becomes a sentence of a different character or length. The effect of a remission is that the prisoner is relieved of the requirement to serve the remainder of the sentence, but the sentence remains intact.

[24] Some confusion was introduced in argument by reference to various documents generated by the Corrective Services Commission which contain provisional assessments of remissions that are expected to be earned by a given date. Some such documents contain mere provisional estimates which may be affected by future events, while others may afford evidence of the grant of an entitlement to remissions that have already been earned. I understand Felton and McCasker (above) to hold that a remission once granted or earned in accordance with the prescribed regulations cannot be arbitrarily or capriciously denied by the Commission. Such a view sits comfortably with the above construction of s 175 of the Corrective Services Act.

[25] The original proceedings were brought by the respondent in civil jurisdiction seeking a declaration of right. The appellant Board has successfully appealed against the declaration that was made. Its notice of appeal seeks orders for costs of the appeal and of the proceedings below. Although the determination of the legal effect of a sentence imposed by the court in its criminal jurisdiction gives the proceedings something of a criminal flavour, they are truly civil proceedings, albeit between parties of unequal economic strength. I cannot see any basis upon which it would be correct to deprive the successful appellant of its costs. Substantially the same arguments were presented in each court and it was necessary for the appellant to come to this court to correct what has been held to be an incorrect order. I therefore agree with the order proposed by Davies JA in relation to costs here and below.

[26] I do not think that the present matter is a suitable one for the grant of an Appeal Costs Fund Certificate as the judgment appealed from was directly responsive to the respondent's submissions below.

[1] [1984] HCA 77; (1984) 156 CLR 364, 367.

[2] [1983] 3 NSWLR 389.

[3] [1981] 2 NSWLR 511.

[4] (1980) 147 CLR 134.

[5] [1994] 2 Qd R 490.

[6] [1998] 2 Qd R 261.