SUPREME COURT OF QUEENSLAND

[1]  THE COURT: On 1 October 2003, Ms Davidson, the respondent, as Acting Deputy Director-General of the Department of Corrective Services, refused the applicant, Mr Sutherland, a remission in respect of his sentence to nine years imprisonment for rape.  Mr Sutherland applied for judicial review of that decision before Muir J on 15 July 2004.  His Honour refused that application.  This is an application for an extension of time within which to file a notice of appeal from his Honour’s decision. 

[2] The application was filed on 30 August 2004, 46 days after the decision rather than the 28 days allowed by the rules.  The delay was caused partly by Mr Sutherland’s misunderstanding that he required a copy of his Honour’s ex tempore reasons and order before filing his appeal, his difficulties in obtaining that material within time and also because of his inability to pay for the transcript of the hearing.  He was not represented by lawyers then or now and argued his case in person. 

[3] Mr Sutherland began to make his inquiries about appealing on 20 July 2004 but was hampered by his ignorance of the procedures required by the rules.  He was supplied with a copy of the Court’s information sheet in respect of civil applications through the registry at a later stage, after the expiration of the time permitted by the rules.  Although that document is readily available on the Queensland Courts website, this is unlikely to assist Mr Sutherland directly.  He, as a prisoner, may not have access to the internet. 

[4] In the circumstances, had there been any merit in the proposed appeal, we would have granted Mr Sutherland an extension of time to file his appeal.  It would be useful, however, for self-represented litigants who are in prison to be provided by the corrective services authorities with information relevant to the prosecution of any appeals at an early stage.  The Queensland Courts web site includes a number of documents designed to assist self-represented and other litigants with the process.  These documents are also available in hard copy from the registry.  To help avoid such delays in the future, the corrective services authorities should have these documents readily available to prisoners who wish to pursue their rights of appeal and should ensure all correspondence between prisoners and the Court of Appeal registry is expedited.

[5] Mr Sutherland was convicted and sentenced to 11 years imprisonment for manslaughter on 26 October 1990.  His sentence to nine years for rape was imposed on 19 September 1991 and was cumulative upon the sentence for manslaughter. 

[6] His main grievance stems from his belief that he should have been given remissions from his sentence for rape on the basis of the law in force when he was sentenced and not pursuant to the regime now in existence under the Corrective Services Act 2000 (Qld).  He also complains that other statutory changes since his sentence that would have benefited him, such as the ability to treat time spent in prison on remand as time served under a sentence, are not applied to him.  Nor, he complains, is he eligible for the sexual offenders’ treatment program, apparently because of his conviction for manslaughter. In that context, his argument is that s 11(2) of the Criminal Code (Qld) and s 20C(3) of the Acts Interpretation Act 1954 (Qld) should be construed to require him to be granted remissions on the basis that applied when he was sentenced. 

[7] Section 11(2) of the Criminal Code provides that:

“If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.”

[8] Section 20C(3) of the Acts Interpretation Act provides that if a provision of an Act increases the penalty for an offence, the increase applies only to an offence committed after the Act commences. 

[9] In our view, neither of these provisions prevents the application of the Corrective Services Act to Mr Sutherland.  As Muir J correctly pointed out in his reasons:

“The removal of one scheme of remissions and its substitution by another does not amount to the imposition of a penalty or to any further or different punishment for the crime for which a person has been convicted; rather, the system of remissions constitutes a privilege extended to a prisoner, in accordance with relevant statutory provisions, through which the punishment imposed by a sentence may be mitigated.”

[10]  See also Smith v Queensland Community Corrections Board [2002] 1 Qd R 448, where this Court decided that the phrase "term of imprisonment" in s 175(1)(a)(i)(A) of the Corrective Services Act 1988 (Qld) meant the term of imprisonment imposed by the court, not reduced by remissions "granted" pursuant to Pt III of the Corrective Services Regulations 1989 (Qld); see at 449-451 per Davies JA.

[11]  If Mr Sutherland had any expectation that he would be released before his sentence expired, on the basis of the law that applied to him after he was sentenced and until the passage of the Corrective Services Act 2000, it has been extinguished to the extent that the release was not provided for under chapters 2 and 5 of that Act; see s 268A(2), s 268A(3) and s 268B(3), and cf. Tyler v Tullipan [2001] QSC 379.  Section 268A applies to a prisoner sentenced for an offence committed before its provisions commenced, on 1 July 2001, whether or not the prisoner was sentenced before that date; s 268A(1). 

[12]  To make doubly sure of this result the legislature has also provided in s 268B(4) that s 268A and s 268B(3) prevail to the extent they are inconsistent with s 20 and s 20C(3) of the Acts Interpretation Act 1954, s 11(2) of the Criminal Code, s 180(1) of the Penalties and Sentences Act 1992 (Qld) or any other law of similar effect. 

[13]  Those provisions destroy Mr Sutherland’s argument, which assumed inaccurately that s 11(2) of the Criminal Code was a grundnorm, incapable of amendment by Parliament.  Nor did he argue that the respondent was not entitled to decide that his discharge would pose an unacceptable risk to the community under s 75(2) of the Corrective Services Act 2000.  Accordingly, his application should be dismissed with costs.