Mallet v Dept of Corrective Services
[2000] QCA 510
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- Mallet v Dept of Corrective Services[2000] QCA 510
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Mallet v Dept of Corrective Services[2000] QCA 510
Mallet v Dept of Corrective Services[2000] QCA 510
SUPREME COURT OF QUEENSLAND
CITATION: | Mallet v Dept of Corrective Services [2000] QCA 510 |
PARTIES: | IAN PHILLIP MALLET (applicant/appellant) v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES (respondent) |
FILE NOS: | Appeal No 3743 of 2000 SC No 10893 of 1999 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 15 December 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 October 2000 |
JUDGES: | McMurdo P, Mackenzie and Byrne JJ Joint reasons for judgment of McMurdo P and Mackenzie J; separate reasons of Byrne J, concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – appeal against dismissal of application for judicial review of decision refusing remissions – where s 27 Corrective Services Regulations applies – where no decision under s 27 made – whether s 27 requires a decision whether to forfeit remissions to be made – whether s 27 provides a basis additional to s 21 to grant remissions Corrective Services Regulations 1989 (Qld), s 21, s 27 McCasker v The Queensland Corrective Services Commission [1998] 2 Qd R 261, referred to |
COUNSEL: | J C Davidson for the appellant M D Hinson SC for the respondent |
SOLICITORS: | Poteri Woods for the appellant Crown Solicitor for the respondent |
- McMURDO P and MACKENZIE J: This is an appeal against a decision of a judge of the Trial Division dismissing an application for judicial review of a decision of the authorised delegate of the Department of Corrective Services refusing remission of the appellant's sentence. The sentence with which the proceedings are concerned is a 7 year sentence which began on 14 August 1993.
- The application for a statutory order of review alleged that the decision maker erroneously made the decision under s 21 of the Corrective Services Regulations 1989, when the decision should have been made under s 27. Part III of the Corrective Services Regulations consists of sections 21 to 28. Section 21 is as follows:
"21.General entitlement to remission. (1) A prisoner serving a sentence of imprisonment of 2 months or longer and who is of good conduct and industry may, at the discretion of the Commission and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.
........................... ."
- Section 22 is concerned with calculation of remission. Sections 23 to 25 provide for acquiring remissions through overtask marks, holding minimum or open security rating and being of good conduct and industry and in honour of Christmas. Section 26 is concerned with habitual criminals.
- Section 27 is as follows:
"27.Forfeiture of remission. Where, within the period of a sentence of imprisonment a prisoner, pursuant to section 101(6)(c) of the Act, undergoes separate confinement for a period of 7 days on 3 or more occasions, and he has not generally been of good conduct and industry, the general manager shall submit all relevant details together with his recommendation to the Commission for consideration by the Commission before the date on which the prisoner might ordinarily have been discharged (or a subsequent cumulative sentence would have commenced), had he been of good conduct and industry. The Commission shall thereupon determine whether the prisoner shall forfeit the whole or any part of the remission which he might otherwise have enjoyed. Where a part only of the remission is forfeited the prisoner's details shall be re-submitted to the Commission in the event that he is not of good conduct and industry during the period of forfeited remission."
- Section 28 is concerned with the case where a prisoner is serving a term of imprisonment and then commits an indictable offence or an offence punishable on summary conviction. The granting of remission is prohibited in respect of any period of the sentence served prior to that offence. However, the prisoner may become eligible for remission on the subsequent portion of the original sentence by good conduct and industry.
- The effect of these provisions is that, subject to the provisions following s 21, a remission of one-third of the sentence may be granted to a prisoner who is of good conduct and industry.
- The discretion to give remission of one-third of the sentence is modified by s 27 and s 28. In the case of s 28 remission can only be granted on the part of the sentence served after the commission of the relevant offence and subject to the prisoner being of good conduct and industry during that portion of the sentence.
- By virtue of s 27, if a person has three or more occasions of separate confinement of seven days and has not generally been of good conduct and industry, a decision forfeiting all or part of remission which the prisoner might otherwise have enjoyed may be made. Where part only of such remission is forfeited the procedure for resubmitting the prisoner's details to the Commission in the event that he is not of good conduct and industry during the period which represents imprisonment served because remission has been forfeited operates.
- The practical effect is that the periods forfeited under s 27 and prohibited by s 28 become incapable of being remitted. They are exceptions to the rule in s 21 that one-third of the sentence together with remissions under sections 23 to 25 may be remitted.
- The argument which appears to have prevailed in the Trial Division and which was repeated by counsel for the respondent was that the discretion to forfeit remission under s 27 was spent since no decision was made before the date upon which the one-third remission would have taken effect if granted, and that the matter fell to be determined under s 21.
- The judgment in the Trial Division refers to that date as 25 January 1999. The applicant's affidavit refers to the relevant date as 25 July 1999 as does the Offender Management Information System Offenders Sentence Calculation. However, it is not necessary to resolve this discrepancy since the decision in respect of which review is sought was made at some time between 20 October 1999 and 9 November 1999.
- It was submitted by counsel for the respondent that if no decision whether to forfeit all or part of remission has been made by the date when remissions would take effect, if granted, the case should be treated as one where a decision had been taken not to forfeit remissions. The full period of potential remissions would remain available to the prisoner. Whether or not he would be actually granted remission then fell to be decided under s 21.
- Section 27 does not say expressly that failure to make a decision should be equated to a decision not to forfeit any remissions. Nor is it necessarily implicit in it that it should be so. Indeed the plain meaning of the words suggests the contrary. A prisoner is entitled to know whether some or all of the time which might be remitted under s 21 is forfeited in his case by operation of s 27.
- Accordingly the appellant is entitled to succeed upon the appeal. We would allow the appeal and order that the issues of whether the prisoner should forfeit the whole or any part of the remission which he might otherwise have enjoyed on the sentence of 7 years imprisonment and whether the prisoner is entitled to remission be remitted to the authorised delegate to be considered according to law. We would also order that the respondent pay the appellant's costs of the proceedings in the Trial Division and of the appeal to be assessed.
- BYRNE J: The appellant is serving sentences of imprisonment totalling 17 years and 11 days. A seven year sentence that commenced on 14 August 1993 was the subject of an application for judicial review of a decision of the authorized delegate of the Department of Corrective Services refusing remission.
- In November 1994, whilst incarcerated, the appellant committed offences. So he was not entitled to remission on that part of his sentence which had previously been served: s 28 of the Corrective Services Regulations 1989 (“the Regulations”). Since November 1994, he has undergone separate confinement for seven days on at least three occasions.[1] Pursuant to s 27 of the Regulations,[2] the general manager was therefore required to submit “all relevant details together with his recommendation” before the date on which the appellant would have been released had he been granted ordinary remissions. The general manager, it seems, discharged this responsibility. The recommendation was not favourable.
- The delegate’s first decision to refuse remission was made in March 1999. It was based on the view that the appellant’s unacceptable behaviour was “not in accordance with requirements of” both s 21 and s 27 of the Regulations. The decision was challenged by proceedings for judicial review which were discontinued after the respondent agreed to reconsider the matter.
- Remission was again refused. Reasons given in November last year stated that the delegate had concluded that the appellant’s “institutional performance” during “the balance” of his sentence “has not been in accordance with the requirements” of s 21. On this occasion, no reference was made to s 27; that omission accounts for this litigation. Appeal is brought from the dismissal of an application for judicial review seeking orders requiring a determination under s 27.
- Now, the prescribed conditions for the exercise of the discretion that s 27 confers were satisfied: the appellant had undergone the stipulated separate confinements; he had “not generally been of good conduct and industry”; and the general manger had submitted “all relevant details” accompanied by such a recommendation as s 27 anticipates. Those things having been done, s 27 in terms obliged the Commission to “determine whether the prisoner shall forfeit the whole or any part of the remission which he might otherwise have enjoyed”. The decision-maker therefore apparently erred in failing to consider the potential application of s 27 to the appellant’s circumstances.
- The main argument against an order requiring reconsideration was, as I understood it, that the absence of a s 27 determination is equivalent to a decision not to forfeit remissions, so that the appellant remains eligible for remissions should his future “conduct and industry” prove to be “good”. This is not an answer to a proved entitlement to a consideration of the matters that s 27 made germane.[3]
- This is not to say that s 27 affords a basis independent of s 21 for remissions.
- Section 21 provides –
“(1)A prisoner serving a sentence of imprisonment of 2 months or longer and who is of good conduct and industry may, at the discretion of the Commission, and subject to the following provisions of this Part, be granted a remission of one-third of his sentence together with such other remission as is provided for in this Part.
- … a prisoner is of good conduct and industry if he –
a)complies with all relevant requirements to which he is subject; and
b)displays a readiness to assist in maintaining order and a willingness and genuine desire to maintain steady industry in every employment or work which may be required of him.”
- The section stipulates two pre-conditions for remission: the duration of the sentence in question must be at least two months; and at the time the remission is granted, the prisoner “is”[4] to be “of good conduct and industry” as that expression is defined in s 21(2). If, but only if, those conditions are satisfied, the prisoner may, not must,[5] receive remission of as much as one-third of the sentence.
- As I read Part III of the Regulations, s 27 complements s 21 by the particular provision it makes in respect of the sentences of those prisoners who have been separately confined on three occasions for the period mentioned and who have “not generally been of good conduct and industry”. Once the general manager satisfies the obligation imposed by s 27, there must be a determination whether the prisoner is to forfeit the whole, or part, of “the remission which he might otherwise have enjoyed”. Such a remission is that envisaged by s 21, which, as I have said, may only be extended if the prisoner “is” of “good conduct…”.
- The appellant’s argument proceeded on the assumption that a prisoner who cannot satisfy the conditions s 21 prescribes might nevertheless qualify for remission under s 27. In my opinion, this is not correct. For one thing, the notion that s 27 affords an additional basis for remission would produce a peculiar state of affairs: a prisoner who had not generally been of good conduct but who had been only twice separately confined would need to misbehave and thereby secure another separate confinement to attract the operation of s 27. That would be absurd; for it would mean that far from being an incentive to good behaviour during incarceration, the worse the institutional behaviour the more likely the prisoner would be to receive remission.
- How, then, is the Part III remission system intended to operate?
- Section 21 does not in terms insist that the prisoner must have been of good conduct and industry throughout his sentence. Rather he “is” to be “good …” when remission is granted. Literally, the section does not require that he has always, or even generally, been “good …”. And a literal interpretation produces a workable result. A stipulation that prisoners be “good” throughout the sentence could involve a disincentive to long-term prisoners who misbehave early on to turn over a new leaf. Yet the purpose of remissions is to encourage good behaviour in prison.[6]
- The view that s 21 focuses on the prisoner’s being “good …” when remission falls to be considered is not without difficulties. First, it requires the decision-maker to consider whether, at the time remission might be granted, the prisoner “is” then “of good conduct and industry”, not whether he has always, or generally, been so. Sometimes, it might not be easy to decide if, for example, a long-term prisoner who had committed offences at an early stage of incarceration but who had become and remained a model prisoner is “good …”. Nice questions of degree could intrude. Secondly, such an interpretation renders s 27 superfluous if, as I think, the matters to be considered under s 27 may in any event be taken into account in the exercise of the discretion s 21 confers. Still, the notion that s 27 affords another basis for granting remission is, as I have said, capable of producing results so peculiar that they surely could not have been intended. Accordingly, the literal interpretation seems preferable.
- The delegate was correct in thinking s 21 material: if the appellant’s circumstances did not meet the conditions stipulated in s 21, there was no “remission he might otherwise have enjoyed” which could be the subject of a s 27 forfeiture. But it appears from correspondence that, in deciding whether the appellant had met the requirements of s 21, the delegate considered whether the appellant had been “… good …” throughout his sentence,[7] which is, I think, to ask the wrong question in deciding whether the conditions s 21 prescribes have been satisfied.
- Had the delegate addressed that the true question that arises under s 21 as to the “good conduct …” requirement and concluded that the appellant had not met it, a reconsideration under s 27 would be pointless, at least if the appellant’s conduct and industry certainly were not of the requisite quality. But that, it seems, was not the delegate’s approach.
- I therefore agree in the orders proposed by McMurdo P and Mackenzie J.
Footnotes
[1] He has also been involved in other prison incidents, including drug use and violent behaviour.
[2] Set out in the reasons of McMurdo P and Mackenzie J.
[3] As McMurdo P and Mackenzie J explain: see pars 12 and 13, with which I agree.
[4] My emphasis.
[5] McCasker v The Queensland Corrective Services Commission [1998] 2 Qd R 261.
[6] cf McCasker at pp 270-271.
[7] At least since 16 November 1994.