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Powell v Director of Queensland Corrective Services

 

[2002] QSC 8

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MUIR J

No 11429 of 2001

COLIN LAWRENCE POWELL

Applicant

and

 

DIRECTOR OF QUEENSLAND CORRECTIVE SERVICES

Respondent

BRISBANE

DATE 04/01/2002

ORDER

HIS HONOUR: The applicant in this application, which is in effect, a writ of habeas corpus calls on the respondent Director-General, Queensland Corrective Services to show cause why the applicant should not be released from custody.

The point at issue is a relatively brief one. On 23 June 1995 the applicant was sentenced by his Honour Judge Hanger in the District Court to a term of imprisonment of four years (less 114 days' pre-sentence custody). After having served 585 days of that sentence the applicant was released on parole on 2 September 1996. The unexpired period of the sentence was then 879 days.

On 2 July 1999 his Honour Judge Boulton sentenced the applicant on 12 counts of imposition, to 18 months' imprisonment and directed that he be released after having served nine months upon giving security by recognisance in the sum of $500 “conditioned that (he) be of good behaviour for a period of two years.” That sentence was imposed on each count and the terms were expressed to be concurrent.

In his sentencing remarks, Boulton DCJ referred to the sentence imposed by Judge Hanger and noted that there had been an unsuccessful appeal to the Queensland Court of Appeal. The point of his observation was to note that the applicant had previously committed serious offences and that the offences for which he was sentencing the applicant had been committed shortly after the applicant was released from custody in respect of the earlier offences.

The applicant, it appears from the material, gave the requisite security on 2 July 1999. He therefore contended that he was entitled to be released from custody on the expiration of nine months after 2 July 1999. He submits that is the plain effect of the order made by Boulton DCJ and that the order was made with the prior sentence in mind.

Mr Plunkett, who appears for the respondent, refers to the effect of section 187 and 190 of the Corrective Services Act, 1988. Section 187(1) provides that where a prisoner released on parole is sentenced to another term of imprisonment upon conviction for an offence committed in Queensland or elsewhere during the parole period the prisoner's parole shall ipso facto be cancelled. He draws attention to that part of the subsection which makes it plain that it takes effect “whether or not the parole period has expired.”

HIS HONOUR: Section 190(1) provides that upon cancellation of a prisoner's parole the original warrant of commitment or other authority for the prisoner's imprisonment will again be in force and:

“No part of the time between the prisoner's release on parole and the prisoner recommencing to serve the unexpired portion of the prisoner's term of imprisonment or detention, other than the period (if any) during which the prisoner was kept in custody consequent upon the prisoner's parole being suspended, shall be regarded as time spent in respect of that term.”

He submits then that by operation of those sections the sentence imposed by Hanger DCJ was reactivated when the applicant was taken back into custody on 30 June 1999 or thereabouts. Accordingly, in his submission, the applicant is still in lawful custody pursuant to the sentence imposed by Hanger DCJ. The term of that sentence expires on 19 May 2002 if one takes into account 146 days of imprisonment arising in respect of a warrant in respect of an imposition offence.

HIS HONOUR: For present purposes it is not necessary to determine whether or not that 146-day period is applicable because the applicant was sentenced to eight months imprisonment by Forno DCJ on 10 April 2000. That sentence was to take effect on the termination of any existing sentence.

Section 152(2) of the Corrective Services Act 2000 which came into effect on 1 July 2001, provides in substance that where a prisoner is released on parole and subsequently offends the time during which the prisoner was on parole before contravening a parole condition counts as time served for the prisoner's period of imprisonment.

The applicant seeks to rely on that provision but I accept Mr Plunkett's submission that section 152 can have no effect for present purposes as at relevant times sections 187 and 190 of the 1988 Act were in force, and operated.

They took effect when the parole conditions were breached and the applicant was sentenced by Boulton DCJ. The applicant commenced to serve the unexpired portion of his term of imprisonment on 2 July 1999 and there is nothing in the 2000 Act which would relieve him from the consequences of acts prior to the commencement of the later legislation.

There is another reason why this application should not succeed. On 14 July 2001, the applicant was remanded in custody by the Magistrates Court to appear on 31 January 2002 in respect of a charge of escaping from lawful custody.

The applicant contends that he was not in lawful custody and that the charge must therefore fail. But even assuming he is right about that (and as will be plain, I have concluded he is wrong) nevertheless he was lawfully remanded in custody by the learned Magistrate and is being held in lawful custody now. There is thus no justification for the order which the applicant seeks.

Now I am not sure what avenues of redress Mr Powell might have in respect of this. On one view of the matter it may be considered somewhat harsh that he has been dealt with in a different fashion to those who commit later offences, but as you point out, sometimes legislation is framed that way and it is the luck of the draw. I suppose, those committing later offences, if they knew the provisions of the legislation would understand that there are different ground rules but as for any redress that he might have, I suppose he could always apply to Judge - perhaps I should say no more.

For the above reasons, I dismiss the application.

Is there any - there's no point in seeking a costs order, I take it?

HIS HONOUR: I decline to make a costs order for two reasons. Firstly, it seems to me that there are some matters which the respondent has done erroneously which have encouraged the applicant to make the application.

There is also an element of public interest in the determinations which the applicant seeks. In particular, the order that was made by Boulton DCJ, and I certainly intend no criticism of the learned Judge, was such that the applicant without delving into legislation to which he had no ready access was entitled to think he had prospects of release in accordance with the order.

Some of the material which perhaps he obtained by judicial review also would have encouraged him in that view. In those circumstances, it would seem to me to be just that there be no order as to costs but I suspect that the point is a fairly academic one in any event.

Whilst on the subject, I should say a little more, I think, about the order of Boulton DCJ. In my view, one cannot read into the sentence imposed or his sentencing remarks the inference that in some manner he has purported to resentence the applicant in respect of the earlier sentence.

The sentence he was imposing was in respect of a Commonwealth offence, the earlier sentence was in respect of an offence under State law. Even assuming that there was power to re-sentence in respect of the earlier offences, one cannot glean from the sentence imposed that there was any attempt to achieve that objective.

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Editorial Notes

  • Published Case Name:

    Colin Lawrence Powell v Director of Queensland Corrective Services

  • Shortened Case Name:

    Powell v Director of Queensland Corrective Services

  • MNC:

    [2002] QSC 8

  • Court:

    QSC

  • Judge(s):

    Muir J

  • Date:

    04 Jan 2002

Litigation History

No Litigation History

Appeal Status

No Status