R v Smith[2013] QCA 397

SUPREME COURT OF QUEENSLAND

1. MUIR JA:  I agree that the application for leave to appeal should be refused for the reasons given by Morrison JA.

2. MORRISON JA: This is an application for leave to appeal against sentence.  The contention is that the primary judge incorrectly applied s 160B(2) of the Penalties and Sentences Act 1992 (Qld) (“PSA”), in that he imposed a parole eligibility date instead of a parole release date.

3. Since that is the sole ground of the application for leave to appeal, there is no necessity to review the circumstances of the offence.

Essential chronology

4. On 24 July 2012 the applicant was sentenced to 15 months imprisonment with 160 days of pre-sentence custody being declared as time served.  The applicant was immediately released on parole for an expected period of nine months and 24 days.  The parole period was due to expire on 17 May 2013.

5. On 3 September 2012 the applicant committed the first of a series of offences.  They were:

1. supplying a dangerous drug within a correctional facility – 3 September 2012;

2. supplying a dangerous drug – 6 September 2012;

3. 18 offences of stealing committed between 8 February 2013 and 18 May 2013; and

4. possession of suspected stolen property – 18 May 2013.

6. The first two offences listed above occurred before the parole period expired. Most or all of the third set of offences occurred before the expiry of the parole period.

7. The applicant was apprehended on 18 May, and remained in pre-sentence custody up to and including 26 September 2013.  That is a total of 132 days.

8. On 27 September 2013 the applicant was sentenced in respect of those offences which had occurred between 3 September 2013 and 18 May 2013.  The sentence was based upon a plea of guilty entered on 17 September 2013.

9. The sentence imposed on 27 September was as follows:

1. in respect of the stealing offences committed between 8 February 2013 and 18 May 2013 – 13 months imprisonment to start at the end of the period of imprisonment imposed on 24 July 2012;^[1]

2. for the offence of unlawful possession of suspected stolen property committed on 18 May 2013 – three months imprisonment to be served concurrently;

3. for the supply of a dangerous drug on 6 September 2012 – six months imprisonment to be served concurrently;

4. for the breach of a suspended sentence imposed on 7 January 2013 – order that the applicant serve the whole of the four months suspended imprisonment, to be served concurrently; and

5. for the aggravated offence of supplying the dangerous drug within a correctional facility on 3 September 2012 – six months imprisonment, to start at the end of the period of imprisonment imposed for the offences of stealing.^[2]

10. A declaration was made that the 132 days of pre-sentence custody stand as time already served.

11. The final aspect of the sentence was that the primary judge fixed a parole eligibility date, by reference to the 11 months of time already served, whether that be time actually served or deemed to have been served. Parole eligibility was fixed at six and a half months of the total 19 months imposed.

12. The order sought on the application for leave to appeal was for the substitution of a parole release date for the parole eligibility date imposed by the sentencing judge.

Relevant legislation

13. Section 160B of the PSA provides:

“(2)If the offender has a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.

3. (3)
   If subsection (2) does not apply, the court must fix a date for the offender to be released on parole.”

14. The term “period of imprisonment” is defined for the purposes of s 160B as meaning “the period of imprisonment that includes the term of imprisonment mentioned in section 160A”.^[3]  That definition takes one to the definition of “period of imprisonment” which appears in s 4, in these terms:

“period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether–

1. ordered to be served concurrently or cumulatively; or

2. imposed at the same time or different times;

and includes a term of imprisonment.”

15. That leads one to the definition of “term of imprisonment” in s 4, which means:

“… the duration of imprisonment imposed for a single offence and includes–

1. the imprisonment an offender is serving, or is liable to serve–

(i)for default in payment of a single fine; or

(ii)for failing to comply with a single order of a court; and

2. for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender’s finite term.”

16. The Corrective Services Act 2006 (Qld) (“CSA”) has a number of provisions which bear on the resolution of this matter.  The first is s 209:

“(1)A prisoner’s parole order is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the order.

2. (2)
   Subsection (1) applies even if the period of the parole order has expired.”

17. Section 210 of the CSA applies where a prisoner’s parole order is automatically cancelled under s 209.  In that event the Parole Board may issue a warrant for the prisoner’s arrest, or a magistrate may do so on application of the Parole Board.  Then subsection (3) applies:

“(3)When arrested, the prisoner must be taken to a prison to serve the unexpired portion of the prisoner’s period of imprisonment.”

18. Section 211 of the CSA applies if a prisoner’s parole order is cancelled under, relevantly, s 209:  see s 211(1)(f).  Subsection (2) provides:

“(2)The time for which the prisoner was released on parole before one of the following events happens counts as time served under the prisoner’s period of imprisonment–

…

(c)the prisoner committed the offence mentioned in subsection (1)(f).”

19. Section 214 of the CSA provides:

“A prisoner released on parole is taken to be still serving the sentence imposed on the prisoner.”

20. Section 215 of the CSA then deals with the expiry of a parole order in these terms:

“A prisoner is taken to have served the prisoner’s period of imprisonment if the prisoner’s parole order expires without being cancelled under section 205 or 209.”

Construction of the provisions

21. Section 209(1) of the CSA provides for an automatic cancellation of a parole order if a prisoner is sentenced “to another period of imprisonment” for an offence “committed … during the period of the order”.  The reference to “another period of imprisonment” seems clearly to indicate that it is a period of imprisonment other than the one in respect of which the parole order was made.  Further, s 209(1) does not require that the sentence, which has the effect of automatically cancelling the parole order, occur during the period of the parole order.  It merely requires that a sentence be imposed in respect of an offence committed during the period of a parole order.  Thus it contemplates at least two situations:  first, where the offence and the sentence both occur within the period of the parole order; and secondly, where only the offence occurs during the period of the parole order, with the sentence occurring subsequently.

22. That this construction is correct is made clear by s 209(2) which provides that subsection (1) applies “even if the period of the parole order has expired”.  That therefore contemplates that the automatic cancellation which is consequent upon the subsequent sentence can occur even after the period of the parole order has expired.

23. Where the parole order is automatically cancelled under s 209, s 210(3) provides that, upon arrest, the prisoner must be taken to prison “to serve the unexpired portion of the prisoner’s period of imprisonment”.  There is no definition of what an “unexpired portion” is for the purposes of the CSA. Since it is the unexpired portion of a “period of imprisonment” one may have thought to derive assistance from the definition of that term, namely the unbroken duration of imprisonment that an offender is to serve for two or more terms, and includes a term of imprisonment.^[4]  However that adds little to the meaning of “unexpired portion”.

24. The meaning is revealed by s 211 of the CSA.  It provides that the time for which the prisoner was released on parole before committing the offence “counts as time served under the prisoner’s period of imprisonment”.^[5]  That clearly means that the time up until the commission of the offence will count as time served under the period of imprisonment, but the balance will not.  On that basis the balance of the parole period is not time served under the period of imprisonment, but is the “unexpired portion of the prisoner’s period of imprisonment” for the purposes of s 210(3) of the CSA.

25. This approach also derives support from the terms of ss 214 and 215 of the CSA.  Under s 214 a prisoner who is released on parole “is taken to be still serving the sentence imposed on the prisoner”.  In other words, actual time in custody is not the test for whether a prisoner is “serving the sentence imposed”.  For that reason the time on parole is still time served as part of the “term of imprisonment”, and therefore part of the “period of imprisonment”.

26. Section 215 reinforces that approach by providing that a prisoner is “taken to have served the prisoner’s period of imprisonment” if the relevant parole order “expires without being cancelled under section … 209”.  That section clearly applies to the situation where the parole order has expired before being cancelled under s 209.

27. Cancellation under s 209 occurs automatically if the prisoner is sentenced for an offence committed during the period of the parole order, even if that sentence comes after the expiry of the period of the parole order. In that situation, the parole order will have expired and will have been cancelled under s 209.  That situation does not come within s 215 of the CSA, which only operates where a parole order has expired without being cancelled under s 209.

28. With that analysis in mind one can conveniently summarise the operation of s 209 of the CSA.

29. Section 209 makes provision in respect of two different things, namely a parole order in subsection (1), and the period of the order under subsection (2).  It is the parole order which is the subject of automatic cancellation under s 209(1).  That cancellation can occur even after the period of the order has expired:  s 209(2).  Where that happens, the prisoner will not be taken to have served the period of imprisonment because s 215 is not engaged.  Rather, s 211(2)(c) applies so that the only time served by the prisoner under the prisoner’s period of imprisonment is that which was served prior to committing the offence which subsequently, by way of sentence, results in the automatic cancellation of the parole order.

30. The construction above provides for a coherent system where a prisoner commits an offence during the period of a parole order. Where that occurs the prisoner becomes subject to a contingent liability that the sentence for that offence will have the result of automatically cancelling the parole order under s 209(1), even if the sentence bringing about that result occurs after the period of the parole order has expired:  s 209(2).  In that situation the contingent liability in terms of the period to be served is made clear by s 211(2)(c) of the CSA, which provides that the time served under the parole order up to the commission of the relevant offence is taken to be time served under the period of imprisonment, but the balance of the period is not.  The balance of the period is the “unexpired portion” which must be served if the prisoner is arrested:  s 210(3) of the CSA.

31. It does not matter to that analysis that a prisoner is outside prison when the prisoner is on parole. Section 214 of the CSA makes it clear that a prisoner released on parole is still taken to be serving the sentence.  Further, if the contingent liability comes to pass, in the sense that a parole order is cancelled under s 209, the prisoner will not be taken to have served the period of imprisonment.

Effect on the current application

32. The applicant was on parole from 24 July 2012, and the period of parole was not due to expire until 17 May 2013.  In the interim she committed the offences, for which she was sentenced on 27 September 2013.  Even though that sentence was imposed after the period under the parole order had expired, the sentence automatically cancelled the parole order:  s 209(1) and (2).  The time served by the applicant up to the point of committing the first offence on 3 September 2012 is, by virtue of s 211(2)(c), time that counts as time served under the period of imprisonment imposed on 24 July 2012.  The balance of the period between 3 September 2012 and 17 May 2013 does not count as time served.

33. Therefore, the applicant cannot be said to be someone who has served the period of imprisonment simply because the period set under the parole order had expired before sentence was imposed, by reason of s 215 of the CSA.

34. On 27 September 2013, when the applicant was sentenced for the offences committed during the period of the parole order, one of the orders made was that: the sentence imposed in respect of the summary offences of stealing^[6] was “to start at the end of the period of imprisonment imposed on 24 July 2012”.

35. That order had the effect of backdating the sentence imposed on 27 September 2013, so that it commenced immediately upon the expiry of the previous sentence.

36. That means that the term of imprisonment ending on 3 September 2012 and the term of imprisonment imposed on 27 September 2013 constitute one “unbroken duration” of imprisonment.  As provided by s 4, it does not matter that these terms of imprisonment were imposed at different times.  There was, therefore, one “period of imprisonment” within the meaning of s 4 of the PSA because there was an “unbroken duration of imprisonment that [the applicant] is to serve for two or more terms of imprisonment …”.

37. The result is that under s 160B(2) of the PSA, as the applicant had the court ordered parole order cancelled under s 209 during the applicant’s period of imprisonment, the court was required to fix an eligibility date for parole.

Disposition

38. For the reasons given above the application for leave to appeal should be refused.

39. DAUBNEY J:  I respectfully agree with Morrison JA.