Foster v Shaddock[2016] QCA 36

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Atkinson J’s reasons for dismissing the appeal and with the orders proposed by her Honour.

[2] FRASER JA:  I have had the advantage of reading in draft the reasons for judgment of Atkinson J.  I agree with her Honour’s reasons with one reservation; I do not find it necessary to consider whether any aspect of international law might bear upon the construction of s 160B(3) of the Penalties and Sentences Act 1992 (Qld).  In my respectful opinion, the other reasons given by Atkinson J compel her Honour’s conclusion that the appellant is not entitled to any of the orders which he seeks in his appeal.  I agree that the appeal should be dismissed.

[3] ATKINSON J:  On 7 April 2014, the appellant was sentenced to periods of imprisonment on 17 offences to which he pleaded guilty.

[4] The learned Magistrate imposed a sentence of six months’ imprisonment for each of four offences, being two offences of common assault, one offence of contravention of a domestic violence order and one offence of dangerous operation of a vehicle.  The Magistrate ordered concurrent periods of imprisonment of three months on two counts of committing a public nuisance, three counts of trespass, two counts of wilful damage and one count of wilful damage to police property.  The Magistrate also imposed concurrent periods of imprisonment of one month on one count of unlawful possession of weapons, one count of possessing dangerous drugs and one count of possessing utensils or pipes for use in committing an offence under the Drugs Misuse Act.

[5] Her Honour then imposed cumulative periods of imprisonment.  Those cumulative periods of imprisonment were a further six months on one count of assault occasioning bodily harm which was to commence at the end of the period of six months’ imprisonment which she had just imposed; and a further one month’s imprisonment on one count of breach of a bail undertaking which was to be served after the two periods of imprisonment of six months she had just imposed.

[6] The Magistrate fixed a parole release date on the total period of imprisonment as 22 July 2014.  She declared a period of 63 days pre-sentence custody from 3 February 2014 to 6 April 2014 as imprisonment already served under the sentence pursuant to s 159A of the Penalties and Sentences Act 1992 (“PSA”).

[7] The total effect of the sentence was to sentence the appellant to 13 months’ imprisonment with five months and 19 days to be served in custody, which included the time already spent in custody, before his parole release date of 22 July 2014.

[8] Section 160B of the PSA provides that if a court sentences an offender to a sentence of three years’ imprisonment or less for an offence which is not a serious violent offence or a sexual offence the court must fix a date for the offender to be released on parole.  The parole release date fixed by the Magistrate as part of the sentence of imprisonment imposed was in accordance with that section.

[9] When a parole release date is fixed by the court, the Chief Executive of the department responsible for Corrective Services must, under s 199(1) of the Corrective Services Act 2006 (“CSA”), issue a court ordered parole order for the prisoner in accordance with the date fixed for the prisoner’s release on parole.  A court ordered parole order was made by the first respondent, as delegate of the second respondent, the Chief Executive, on 16 July 2014 for the appellant’s release on 22 July 2014 in accordance with the parole release date which had been fixed by the court on 7 April 2014.

[10] A decision was then made on 22 July 2014 by the first respondent, as delegate of the second respondent, to suspend the appellant’s court ordered parole order.  This was the date the appellant was due to be released under the court ordered parole order.  The decision was said to have been made pursuant to Chapter 5 Part 1 Division 5 of the CSA which deals with amending, suspending or cancelling parole orders.  The respondent relied on the powers given to the Chief Executive by s 201(2) of the CSA which provides:

“The chief executive may, by written order, suspend a parole order if the chief executive reasonably believes the prisoner–

(a)has failed to comply with the parole order; or

(b)poses a serious and immediate risk of harm to someone else; or

(c)poses an unacceptable risk of committing an offence; or

(d)is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas.”

[11] Section 201(4) of the CSA provides that a written order suspending a parole order has effect for the period of not more than 28 days stated in the written order, starting on the day the order is made.  Section 203(1)(b) of the CSA provides that immediately upon making a written order suspending a court ordered parole order, the Chief Executive must give written notice of the grounds of making the written order to the secretary of a regional parole board.

[12] The first respondent filed an affidavit in which he affirmed that he made the decision to suspend the appellant’s court ordered parole order as he held a reasonable belief that the appellant posed a serious and immediate risk of harm to someone else.  He set out the reasons for that belief and it is not contested that the belief was not reasonable.  The appellant was given oral notice of the suspension of his court ordered parole order on 22 July 2014 and then given written notice under s 201(2)(b) of the CSA on 28 July 2014.  The written notice did not state the date on which the suspension of his court ordered parole order was made nor did the written order suspending the parole order state for what period, being not more than 28 days, it was to be in effect.

[13] The appellant challenged this decision in a judicial review application and on 25 February 2015 the judge who heard the judicial review application declared that the decision made by the first respondent to suspend the appellant’s court ordered parole order was void because of the failure to comply with requirements of s 201(4), that is the failure to make the order in writing and to state the period of suspension.

[14] The appellant remained in custody after his court ordered parole order was suspended by the Chief Executive and, on 5 August 2014, the third respondent, which is the relevant regional parole board, decided to suspend the appellant’s parole for an indefinite period.  Its power to do so was derived from s 205(2)(a) of the CSA which provides:

“(2)A parole board may, by written order—

(a)amend, suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order—

(i)has failed to comply with the parole order; or

(ii)poses a serious risk of harm to someone else; or

(iii)poses an unacceptable risk of committing an offence; or

(iv)is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas”

[15] The definition of “suspend” in s 204 of the CSA shows that a board may suspend a parole order for a fixed or indeterminate period.  The suspension had effect, by virtue of s 205(5) of the CSA, from 5 August 2014, the date on which the decision to suspend was made by the parole board.  On 15 September 2014, exercising power under the same statutory provision, the parole board cancelled the court ordered parole order.  However, it accepted that, after receiving further information, the cancellation had been made on an incorrect basis and rescinded the cancellation on 9 October 2014.  This meant that the appellant remained subject to the suspension of his court ordered parole for an indefinite period.  He then served the remainder of his sentence without any release on parole.

[16] The appellant submitted that the power of the Chief Executive and of the regional parole board to suspend a court ordered parole order can only arise once the prisoner has been released on parole.

[17] The judge hearing the judicial review application rejected the appellant’s argument and upheld the validity of the decision of the parole board to suspend the appellant’s parole notwithstanding that he had not been released from custody on the parole order.

[18] On appeal, the appellant sought the following relief:

1. An order quashing or setting aside the third respondent’s decision of 5 August 2014.

2. A declaration that the third respondent’s decision of 5 August 2014 was invalid.

He also sought consequential costs orders.

[19] The fact that the appellant has now served his sentence in full does not make this an entirely hypothetical appeal.  If the third respondent’s decision to suspend the appellant’s parole order was unlawful, the appellant is entitled to vindicate his reputation by having the decision set aside.[1]

Appellant’s submissions

[20] The appellant submitted that subsection 160B(3) of the PSA is clear in its requirement that, on the date fixed by the sentencing court as the parole release date, the prisoner is to be released on that date.  Other provisions, including s 160F(2) and s 160G(3)(b) of the PSA, clearly envisage that an offender whose parole release date was fixed by the court would be released on parole on that date.  He submitted that the general powers in Chapter 5 Part 1 of the CSA must yield to the specific effect of the sentencing court’s order in fixing the parole release date.  The general powers, whatever they permit, do not extend to any authority to prevent the release of the sentenced prisoner on parole on the parole release date fixed by the sentencing court.

[21] It follows, it was submitted, that any discretion to exercise the powers contained in Chapter 5 Part 1 of the CSA did not arise until the prisoner had been released.

[22] The appellant further submitted that as the right to liberty is a fundamental right, any power bestowed on the executive to alter his sentence and effect his continued detention in custody must be bestowed by legislation with clarity.  The grant of a general power to amend, suspend or cancel a parole order, the appellant argued, is insufficient in present circumstances to achieve that degree of clarity.

[23] In oral argument the appellant referred to Bond v Rockett[2] where de Jersey CJ made an order that the respondent, the Director General of Corrective Services, issue under s 199(1) of the CSA, a court ordered parole order for the applicant in accordance with the date fixed for her release on parole under s 160B(3) of the PSA by the District Court.  In that case the applicant had been released prior to her court ordered parole release date under an exceptional circumstances parole order.  She had been in breach of one of the conditions of that parole order and the parole order had been suspended.

[24] The Chief Executive of Queensland Corrective Services then declined to issue a court ordered parole order in accordance with the date which had been fixed by the court.  The Chief Justice held that:[3]

“The conjunction of s 160B subsection (3) of the Penalties and Sentences Act and section 199 of the Corrective Services Act produce a position of crystal clarity.  Where the court fixes a parole date the Chief Executive must issue a Court Ordered Parole Order and the prisoner must be released.”

[25] The Chief Justice went on to describe the prisoner as having rights and entitlements in the following language:[4]

“The conjunction of section 160B subsection (3) of the Penalties and Sentences Act and section 199 of the Corrective Services Act gives rise to an unequivocal right in the prisoner to be released on the Court ordered parole date fixed by the Court.

That being so any consequence of a prior breach of other parole must be regarded as having been overtaken by that entitlement.”

[26] The CSA was amended in 2009 subsequent to the decision in Bond v Rockett to negate the effect of Bond v Rockett in its particular circumstances.  Section 199 was amended to include a new subsection (5) which provides that the obligation of the Chief Executive to issue a court ordered parole order for a prisoner in accordance with the date fixed for the prisoner’s release on parole under the PSA does not apply in relation to a prisoner to whom s 185A of the CSA applies.  Section 185A provides, inter alia, that any entitlement or expectation the prisoner had to be released on parole on the parole release date under a court ordered parole order was extinguished where, before the parole release date, the prisoner was granted exceptional circumstances parole in relation to the period of imprisonment.  The amendments did not purport to alter any other entitlement or expectation a prisoner might have to be released under a court ordered parole order.

[27] Finally, the appellant argued that extrinsic material tended against the interpretation contended for by the respondents.  The third respondent’s power in s 205(2)(a) of the CSA was previously contained, in relevantly similar terms, in s 150(1) of the Corrective Services Act 2000 (“the 2000 Act”).  The explanatory notes for the 2000 Act described the power to amend, suspend or cancel a parole order “at any time after the prisoner is released.”[5]  With regard to the amendments to the PSA which provide for the fixing of a parole release date by the sentencing court, the explanatory notes provide:[6]

“The date that the court fixes for an offender’s release to parole is the date the offender will be released from custody.  A corresponding provision within the Bill (clause 199) requires the chief executive to release the offender to parole on the date fixed by the court and issue the offender with a court ordered parole order unless a offender can not be released because the offender is remanded in custody on another charge.  An offender will be required to serve the balance of their period of imprisonment under supervision in the community unless there is cause for a regional parole board to amend, suspend or cancel the court ordered parole order due to the behaviour of an offender following their release to parole.”

The respondent’s submissions

[28] The respondent submitted that once the court fixed a date for the offender to be released on parole under s 160B(3) of the PSA, a court ordered parole order was made as required by s 199 of the CSA.  Once such a parole order was made, the CSA gave a parole board the power to amend, suspend or cancel such an order in the circumstances set out in the CSA.  The relevant provisions of the PSA and the CSA are intended to work together and were passed by the Parliament in the same Act.

[29] The respondents submitted that this was both appropriate and conventional.  They relied upon the proposition that once a prisoner has been sentenced, the exercise of the judicial function is complete and the prisoner passes into the control of the administrative arm of government which exercises the administrative function of determining whether the prisoner should be released on parole: see Crump v New South Wales (2012) 247 CLR 1 at [28] and [58].[7]  Thus the CSA was not, they submitted, open to challenge as a purported exercise of judicial power by the executive.  The appellant did not challenge the decision on that basis.[8]

Consideration

[30] The determination of this case depends upon the interpretation and reconciliation of Part 9 Division 3 of the PSA, which deals with the powers and duties of courts imposing sentences, and Chapter 5 Part 1 of the CSA, which deals with powers and duties of the executive with regard to the parole of prisoners.

[31] The relevant section of the PSA in this case is s 160B(3).  Its application is expressed in the negative in subsection (1) which provides that “this section applies if neither section 160C or 160D applies”.  Those sections apply to sentences which impose periods of imprisonment of more than three years and to sentences for offences which include a term of imprisonment for a serious violent offence or a sexual offence.  Subsection (2) then excludes those cases where the offender has had a court ordered parole order cancelled during the offender’s period of imprisonment.  Unless those circumstances apply, the court sentencing an offender must, pursuant to s 160B(3), fix a date for the offender to be released on parole.  In s 160, a “parole release date” for an offender is defined to mean “the date fixed under subsection 160B(3) as the date the offender is to be released on parole”.  The effect of these provisions is that where a court sentences an offender to three years’ imprisonment or less, subject to exceptions not here relevant, the court must set a parole release date which is the date the offender is to be released on parole.  Some provisions in Part 9 Division 3 of the PSA appear to contemplate that an offender whose parole release date is fixed by the court will be released on that date.

[32] Once sentenced, the prisoner becomes subject to the CSA which has extensive provisions in Chapter 5 dealing with parole.  Under s 7 of the CSA a person sentenced to a period of imprisonment is, from the time the person is being taken to a corrective services facility for detention, in the custody of the Chief Executive until discharged.  This is so even if the person is lawfully outside a corrective services facility unless the person is in the lawful custody of another person.  Release on parole is an example of when a person is in the custody of the Chief Executive although lawfully outside a corrective services facility.

[33] A prisoner who is released on parole may be released, subject to the prisoner’s particular circumstances, on one of three different types of parole order.  Two of these types of parole order are made by a parole board.  They are a parole order made after the prisoner has reached his or her parole eligibility date under statute or as set by the sentencing court; and an exceptional circumstances parole order.  The third type of parole order, a court ordered parole order, is made by the Chief Executive.  If a sentencing court has fixed a parole release date, s 199 of CSA provides that the Chief Executive must issue a court ordered parole order unless the prisoner is being detained on remand for an offence or has been released on an exceptional circumstances parole order.

[34] In some divisions of Part 1 of Chapter 5, the legislation applies only to parole orders that are made by parole boards, ie all parole orders other than court ordered parole orders.  Other divisions did not restrict the provisions to parole orders made by parole boards but apply to all parole orders, including, therefore, court ordered parole orders.

[35] Section 200(1) in Division 4, for example, sets out conditions which must be found in all parole orders; whereas s 200(2) deals with conditions that may also be imposed only on parole orders granted by a parole board.

[36] Division 5 of Part 1 of Chapter 5 of the CSA, which deals with amending, suspending or cancelling parole orders, applies to all parole orders and is expressly therefore not restricted only to parole orders made by parole boards.  The power of the Chief Executive to suspend any parole order is found in s 201(2) which has been previously set out in these reasons.  The relevant consideration in this case was that found in s 201(2)(b), that the Chief Executive reasonably believed that the appellant posed a serious and immediate risk of harm to someone else.  In this case that “someone else” was the person who was the victim of a number of the offences for which the appellant was serving imprisonment.  The behaviour of the appellant which gave rise to the Chief Executive’s belief occurred after he was sentenced and while he was in prison.  However, the Chief Executive’s suspension of the appellant’s court ordered parole order was correctly declared to be invalid by the judge hearing this matter at first instance as it failed to conform with the formal requirements of the CSA.

[37] The appellant’s alternative and primary submission at first instance, that the appellant’s court ordered parole order could only be suspended by the Chief Executive after he was released, was not successful.

[38] That, however, was the submission pursued both at first instance and on appeal with regard to the decision of the parole board to suspend the appellant’s court ordered parole order indefinitely.

[39] As previously set out, the power of the third respondent, the relevant parole board, to suspend the appellant’s court ordered parole order is found in s 205(2) of the CSA and in this case the parole board suspended the court ordered parole order because the board formed the reasonable belief that the appellant posed an unacceptable risk of committing another offence.  It was not argued that the parole board’s belief was not reasonable.  Subsection 205(2) itself provides an example of a statutory provision which applies only to parole orders made by parole boards and of statutory provisions which apply to all parole orders, including court ordered parole orders.  Subsection 205(2)(b) applies, according to its terms, only to parole orders made by parole boards; whereas subsection 205(2)(a) and subsection 205(2)(c) apply, according to their terms, to all parole orders, including therefore court ordered parole orders.

[40] The entitlement and therefore expectation of a prisoner to be released on the parole release date fixed by the sentencing court, which will be set out in the court ordered parole order, and the expectation reflected in Part 9 Division 3 of the PSA that an offender whose parole release date is fixed by the court will be released on that date, are modified by the power given to the parole board in s 205 of the CSA to amend, suspend or cancel that parole order.  It is modified to the extent only that the parole board’s powers may not be exercised except in the specific circumstances set out in subsection 205(2)(a) of the CSA: ie that the parole board reasonably believes that the prisoner subject to the parole order has failed to comply with the parole order (s 205(2)(a)(i)), poses a serious risk of harm to someone else (s 205(2)(a)(ii)), poses an unacceptable risk of committing an offence (s 205(2)(a)(iii)) or is preparing to leave Queensland without permission (s 205(2)(a)(iv)).  The parole board’s power is thus circumscribed.  It cannot act unless one of these conditions is satisfied.

[41] The circumstances in which the parole board is empowered to act apply only once a person is subject to a parole order.  A parole order will necessarily have to be made before a person may be released on parole.  Although by no means determinative, the explanatory notes to the CSA recognise that the power may be exercised before or after a prisoner is released on parole when it gives as an example of when a parole board may amend, suspend or cancel a parole order under s 205 before a prisoner is released on parole as follows:[9]

“A prisoner, having been granted parole, is awaiting release and commits a prisoner offence by assaulting another prisoner.  A board may cancel the parole order.”

This is consistent with the connotation of the words used in s 205.

[42] A failure to comply with the parole order can only occur after a person is released on parole; however, the other circumstances, posing a serious risk of harm to someone else or a serious risk of committing an offence or preparing to leave Queensland, may, as a matter of fact, occur before or after the person subject to the parole order has been released from prison on that parole order.  It follows that, if the parole board reasonably believes that one of those circumstances has arisen before the person is released on any parole order, the board has the power to suspend, amend or cancel the parole order before the person is released on that parole order.  There is nothing in the wording of the legislation that suggests that this power (that is the power in the specified circumstances to amend, suspend or cancel the person’s parole order prior to release) does not apply to a person subject to a court ordered parole order.  On the contrary, it is clear from the wording of the legislation that it does and there is no temporal limitation on when that power may be exercised once a parole order has been made.

[43] It is true, as the appellant submitted, that the liberty of the person is a fundamental right recognised by international law.[10]  This is expressed most succinctly by Article 3 of The Universal Declaration of Human Rights, which provides: “Everyone has the right to life, liberty and security of person.”[11]  The liberty of the person is also a right guarded jealously by the common law.[12]  The right to liberty can therefore only be taken away by clear words.  Statutory construction always prefers a construction favouring liberty.[13]  As Deane J held in Re Bolton; Ex parte Beane:[14]

“A legislative provision should not be construed as effecting … a derogation from fundamental principle relating to the freedom of the subject in the absence of a clear legislative intent that it should be so construed.”

[44] In this case, however, there is no ambiguity.  Notwithstanding the statements made in the explanatory notes which may suggest to the contrary, the plain meaning of words of the statute provides the power of the parole board, carefully circumscribed as it is, to curtail what would otherwise to the right of the prisoner to be released on parole under a court ordered parole order.  There is a clear expression of a statutory curtailment on the unfettered or absolute right to be released on the parole date set by the sentencing court as the parole release date.  The parole board may amend, suspend or cancel a parole order under s 205 of the CSA whether before or after a prisoner is released on parole.

Conclusion

[45] It follows from the reasons outlined that the appellant is not entitled to an order quashing or setting aside the third respondent’s decision of 5 August 2014 nor to a declaration that the decision was invalid.  Accordingly, the appeal should be dismissed.  With regard to costs, I would order that unless the appellant files submissions on costs in accordance with para 52(4) of Practice Direction 3 of 2013 within 14 days, with any response by the respondents within 7 days of receipt of those submissions in accordance with para 52(4), the order is the appellant pay the respondents’ costs of the appeal.