R v Uittenbosch[2004] QSC 439

SUPREME COURT OF QUEENSLAND

[1] The applicant, Shane Anthony Uittenbosch, seeks the reopening of a sentence under s 188 of the Penalties and Sentences Act 1992. Mr Uittenbosch was sentenced as an adult to a period of imprisonment cumulative on a sentence which had been imposed on him while he was a juvenile.  Essentially, the issue is this:  whether the cumulative sentence should run from the date on which he was entitled to the benefit of a fixed release order under the juvenile sentence, or from the end of the entire period of detention imposed on him as a juvenile.

[2] Mr Uittenbosch was born on 15 July 1980. On 20 June 1997, he was found guilty of murder. On 6 August 1997, he was sentenced, as a juvenile, to detention for 12 years.  He had already served 49 days of the sentence as at that date. Section 188(2) of the Juvenile Justice Act 1992, as it stood at the relevant time, permitted the court to order release from detention after serving 50 per cent of the period of detention. Section 189(1) required the chief executive to make an order (then termed a fixed release order, now called a supervised release order) releasing the child from detention at the time indicated by the court, although the Chief Executive could attach conditions to the release order.  (For simplicity’s sake, I shall refer to the date on which a juvenile is entitled to be released under such an order as the “fixed release order date.”) The learned sentencing judge, Derrington J, directed in Mr Uittenbosch’s case that he be released after serving 50 per cent of his sentence. 

[3] On 20 June 1998, an application was made under s 211(1) (as it then was numbered) of the Juvenile Justice Act 1992 for an order which enabled Mr Uittenbosch’s transfer to an adult jail.  Section 211 was, at that time, in these terms:

“211.(1)Subject to subsection (2), a person serving a period of detention under a detention order, or the commission, may apply to a Childrens Court judge for an order that the unserved part of the period of detention be served as a term of imprisonment.

(2)Subsection (1) only applies if—

(a)the person is 18 or more; or

(b)the person is 17 or more and—

(i)has previously been held in custody in a prison on  sentence, remand or otherwise; or

(ii)has been sentenced to serve a term of imprisonment.

(3)The court may grant or refuse to grant the order.

(4)An order made under subsection (1)—

(a)must specify the day on which the order will take effect; and

(b)is taken for all purposes to be a sentence of imprisonment for a period equal to the length of the unserved part of the period of  detention.

(5)The Corrective Services Act 1988 applies to a person imprisoned under the order.

(6)However, the person may only, and must, be released on parole on the day the person would have been released under a fixed release order if the order under subsection (1) had not been made, unless the person—

(a)is released under the Corrective Services Act 1988, section 166(4)or (5); or

(b)is required to be held in custody for another reason.

(7)In this section—

“period of detention”, for a person who is liable to serve a further period of detention cumulatively with a period of detention being served, includes the further period of detention.

The order was duly made. 

[4] The date on which Mr Uittenbosch was due for release by the combined effects of ss 188(2), 189(1) and 211(6) was 15 June 2003.  However, on 29 May 2003, I sentenced Mr Uittenbosch to three years imprisonment for assault occasioning bodily harm while armed. Because the offence was committed while he was serving a term of imprisonment, the sentence had to be imposed cumulatively on the existing sentence. Section 156A (2) of the Penalties and Sentences Act 1992, which requires that result, is in these terms:

“A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.”

Section 4 of the Penalties and Sentences Act 1992 defines “term of imprisonment”, so far as is relevant for these purposes, as meaning “the duration of imprisonment imposed for a single offence”.

[5] I recommended that Mr Uittenbosch be eligible for parole on 15 June 2004 (one year later than the fixed release order date).  In making that recommendation (which differed from those imposed on the seven co-accused in that it was earlier than half way through sentence) I said that the exception was made “in order to recognise the pressing need for furtherance of your rehabilitation, which seems to be well under way”. 

[6] The fresh sentence meant, of course, that Mr Uittenbosch was, at the time he would otherwise have been released under the fixed release order, in custody “for another reason” within the meaning of s 211(6).   In making submissions in respect of the fresh sentence to be imposed, his counsel said that it would be cumulative from the 50 per cent release date; that the three year sentence would run from 15 June 2003.  That proposition was not contradicted by the Crown, and it is accepted here that the Director of Public Prosecutions Office also proceeded in its sentencing submissions on the basis that the cumulative sentence would run from that date, not from the end of the whole 12 year sentence.  The Attorney-General appealed against the sentence imposed on Mr Uittenbosch and his seven co-accused;  the sentences were not disturbed, and the question of the cumulative operation of Mr Uittenbosch’s sentence was not canvassed.

[7] The date from which I recommended eligibility for parole has now passed. Mr Uittenbosch, I am told, has been refused parole until he has completed a course, the availability of which is uncertain. He has also encountered this difficulty:  the Department of Corrective Services regards the three year sentence as cumulative upon his existing 12 year sentence, so that he is facing another eight years in jail if he does not succeed in obtaining parole. 

[8] Mr Chowdhury, for Mr Uittenbosch, argued that although a term of imprisonment ordered to be served cumulatively would ordinarily commence from the end of the first term of imprisonment, here, where a supervised release order was involved, Mr Uittenbosch was required to be released on parole at the 50 per cent point (in this case 15 June 2003), subject to custody being continued in relation to the unserved part of the sentence imposed.  Section 156A(2) of the Penalties and Sentences Act required the new sentence to be cumulative “with any other term of imprisonment the offender is liable to serve”.  Here, Mr Uittenbosch was liable to serve no more than the balance of the custodial part of his sentence up until 15 June 2003.  Accordingly the cumulative sentence should have commenced as at that date.  In the alternative Mr Chowdhury sought that the sentence be reopened and varied, on the basis that it had been imposed by me under a mistake of fact as to its effect. 

[9] Mr Nathan, for the Director of Public Prosecutions, appeared to make submissions in the event that a reopening of the sentence was necessary, but did not wish to be heard on the construction point.  A solicitor, Mr Hall, also appeared for the Director-General of the Department of Communities, explaining that the Department had had very late notice of the application.  He foreshadowed that the Director-General might wish to make submissions, and the matter was adjourned to allow that to happen; I have since been advised that she has decided against doing so. 

[10] Mr Hinson SC, for the Director-General of the Department of Corrective Services, pointed to s 81 of the Corrective Services Act 2000.  It provides as follows:

“Effect of remission on cumulative sentences

If a prisoner is ordered to serve a term of imprisonment (the second term) cumulatively with another term of imprisonment (the first term), the second term starts at the end of the first term, taking into account any remission granted in relation to the first term.”

Here, Mr Hinson said, the first term of imprisonment referred to in s 81 was a term of 10 years and 357 days from 26 June 1998, because that was the unserved part of the 12 year period of detention.  The second term of imprisonment imposed by me would not begin until the end of that first term on 18 June 2009, or earlier if remissions applied.  The “unserved part of the period of detention” referred to in ss 211(1) and (4) of the Juvenile Justice Actmeant the balance of the entire period of detention remaining to be served at the date of the order under s 211(1), not merely the part remaining to be served in custody up to the fixed release order date. If that were not so, s 211(6), which enabled release on parole on the fixed release order date, would be otiose.  By virtue of s 211(5), the Corrective Services Act provisions in relation to parole applied to the prisoner once released, including s 153 which takes such a prisoner “to be still serving the sentence imposed” on him. 

[11] The operation of the section turns, to a great extent, on the meaning of “unserved part of the period of detention”, and the expression is not defined, although used a number of times, in the Juvenile Justice Act. Mr Hinson’s submissions as to why it should be regarded as meaning the remaining part of the entire period of detention, as at the date of the s 211 order, are compelling, but the consequences of his construction would in some cases be arbitrary, and potentially extreme.  Any sentence of imprisonment imposed for an offence committed in custody must be cumulative. One could have a situation in which a juvenile offender transferred to an adult prison committed a relatively minor offence, attracting seven days imprisonment, and by virtue of that lost all benefit of a fixed release at half way point, thus doubling his prospective time in actual custody.  That seems a draconian result, one at odds with the intent of the Juvenile Justice Act, which gives to persons sentenced as children the unique advantage of a firm release date, and preserves it even in the event of transfer to an adult jail. 

[12] A study of the history of s 211 helps to resolve the expression’s ambiguity, and points to a different conclusion.  When first enacted, it provided for an order “that the unserved portion of the period of detention” be served as a term of imprisonment. The application could be made by the chief executive or the juvenile offender himself, provided that he was 18, or alternatively was 17 or over and had previously been sentenced to a term of imprisonment. The section contained no equivalent of subsection (6); that is to say, it did not provide for preservation of the fixed release order date.  The explanatory note dealing with clause 211 of the relevant Bill explained the effect of the provision as follows: 

“Clause 211 provides for a Childrens Court Judge to order the transfer of a person from a detention centre to a prison.  The person concerned must be

• over 18 years of age, or
• over 17 years and been sentenced to imprisonment.

The chief executive, or the person in detention, may apply to a Childrens Court Judge for an order that the unserved portion of the period of detention to be spent in custody, be served as a term of imprisonment. Where the court makes the order, the court shall specify the date on which the order is to take effect. The chief executive must notify the chief executive, Queensland Corrective Services Commission, of the order being made.

The provisions of the Corrective Services Act 1988 will apply to that person from the date the order takes effect, and from that date, the unserved portion of the detention order is taken to be equivalent to the unserved part of an order for imprisonment.” (italics added)

The reference to “the unserved portion of the period of detention to be spent in custody” seems to indicate that the intention was that only that part of the period of detention leading up to the fixed release order date was to be served as a term of imprisonment. 

[13] In 1994, the Act was amended by Schedule 1 of the Statute Law (Miscellaneous Provisions) Act (No. 2). The wording of s 211(1) was altered so that it referred to an order that the “remainder of the period of detention” be served as a term of imprisonment, while subsection (4) now provided that the order was to be taken to be a sentence of imprisonment “for a period equal to the length of the remainder of the period of detention”.  Sub-section 211 (2) expanded the categories of detainees who could apply for an order under the section to include persons 17 or over who had previously been held in an adult jail. For the first time a definition of “period of detention” was inserted, making it clear that the term encompassed all periods of detention imposed, including cumulative periods.  According to the explanatory notes these amendments were to

“clarify that any person liable to serve a period of detention under [the] Act who has experienced incarceration in a prison may apply to serve the period of detention as a term of imprisonment in a prison.”

That is one effect: one can see that a prisoner serving a long sentence in an adult jail has something to gain by being able to serve out, concurrently, the entire period of a sentence of detention imposed on him as a juvenile.  But the note says nothing as to the position of other juvenile offenders affected by the section.

[14] In 1996 the section was amended again, by the Juvenile Justice Legislation Amendment Act 1996.  Section 72 of that Act removed the reference to “remainder of the period of detention” and inserted in its lieu the expression “unserved part of the period of detention”. Subsection (6), requiring release on parole on the fixed release order date was inserted for the first time. 

[15] The explanatory note is illuminating:

“Section 211 of the Act is amended as to allow the Commission to apply to the court for an order that the balance of a child detention order be served as a term of imprisonment. 

Amendments are also made to clarify the operation of the section.

The term “remainder of the period of detention” is replaced with the term “unserved part of the period of detention”, so as to leave no doubt that what is being transferred is the balance of the period left to be spent in custody.

At the same time, the opportunity is taken of clarifying the law relating to parole or early release in such circumstances.  Under the amended section, the child must be released (but under parole conditionS) on the date when the child would have been released had the detention order been served out in a child detention centre (that is, subject to the 50% or 70% fixed release date).  The intention is to carry out the original intention of the sentencing court as to the length of actual detention, despite the physical transfer to a prison.

There are two exceptions, namely, earlier release on parole where special circumstances exist and where there is some other reason for the person remaining in custody (for instance, another sentence).”(italics added)

The equation of the term “unserved part of the period of detention” with “the balance of the period left to be spent in custody” seems to make it quite clear that what is meant is the period before the child’s release on the fixed release order. That is reinforced by the expressed intent of “carry[ing] out the original intention of the sentencing court as to the length of actual detention”.

[16] That version of the Act was the one which applied at the time Mr Uittenbosch was sentenced, and at the time of his fixed release order date. By s 103 of the Juvenile Justice Amendment Act 2002, s 211 was replaced by a new section, s 270, commencing on 1 July 2003. Of particular interest are ss 270(7) and (8), which, in relation to release, provide:

“(7) However, the person may only, and must, be released on parole on the day the person would have been released under a supervised release order if the order under subsection (1) had not been made.

(8) Subsection (7) does not prevent—

……..

(b) the continued custody of the person for the unserved part of any sentence of imprisonment imposed against the person. 

The explanatory note explains that the amending clause:

“clarifies that while a child who has been transferedto a corrective services facility must be released on the child’s supervised release date, this mandate does not negate the possibility of earlier release under an “exceptional circumstances parole order” under the Corrective Services Act 2000 or the continued custody of the person if they are required to continue to serve a period of imprisonment.”

[17] The terms of both subsection 211(6) of the Act as it stood at the relevant time, and subsection 270(8) as it now appears, tend to reinforce the view that, from the fixed release order date, the prisoner is no longer to be regarded as being held in custody on the juvenile sentence.  Section 211(6) does not suggest that the juvenile sentence is a continuing reason for holding the prisoner, but rather that the reason for custody at that point is the existence of an independent custodial requirement; as the explanatory notes at the time it was introduced suggest, a new sentence.  If anything, the combined effect of subsections 270(7) and 270(8) make the position even clearer:  the prisoner is to be released in respect of the juvenile sentence, but that requirement will not prevent his continued custody for another sentence.  There is no suggestion in either provision that he may be held in contemplation of an adult sentence to commence at sometime in the future, at the end of the juvenile period of detention.

[18] There is nothing in either s 211 or s 270 which suggests an intention that the advantage the Act confers on a juvenile offender, of a fixed end date to his time in custody, is to be lost as a consequence of offending, no matter how minor, in the adult jail context.  Sub-sections 211(6) and 270(8) do no more than provide in a common sense way that a fixed release date does not entitle an offender, who still has an adult sentence to serve, to his liberty. Section 81 of the Corrective Services Act applies in such cases in this way: the first term of imprisonment runs up until the fixed release order date, and the second, cumulative term from that date.

[19] That construction does not, I think, conflict with the parole regime under the Corrective Services Act.  Under s 153 the prisoner is taken, while on parole to be still serving the sentence imposed; so far as a juvenile offender is concerned, that will be the sentence for the entire period of detention.  Notwithstanding that only that part of the period of detention up to the fixed release date is to be served as a term of imprisonment under s 211, the offender remains under sentence once that date has passed, just as he would if he were a juvenile released from a detention centre.  Thus, where if he breached a supervised release order as a juvenile he could expect under s 231 of the Juvenile Justice Act to be returned to a detention centre to serve the unexpired part of his sentence, a contravention of the parole order can result in his being required, under s 150 of the Corrective Services Act, to serve the unexpired part of the sentence in a jail. 

[20] Having reached these conclusions as to the proper construction of s 211, I think it appropriate to make a declaration to the effect that that the sentence of three years imprisonment imposed by me on Mr Uittenbosch began on the day he would otherwise have been entitled to release under a fixed release order.

[21] The net effect is that Mr Uittenbosch has now served 18 months imprisonment on that sentence, notwithstanding the recommendation for parole on 15 June 2004.  Without knowing more than what was said from the bar table about the circumstances in which he has been refused parole, I would not wish to comment on them. I will however repeat, for the benefit of any Community Corrections Board considering the matter, my observation that the recommendation was made “to recognise the pressing need for furtherance of [Mr Uittenbosch’s] rehabilitation”. And I note the observations in Williams v Queensland Community Corrections Board[1] and R v Maxfield[2] as to the reasonable expectation of entitlement to parole at the recommended date, absent any new consideration, not taken into account at sentence, which would indicate a contrary result. 

Order

[22] I declare that the sentence of three years imprisonment imposed by me on Mr Uittenbosch on 29 May 2003 began on 15 June 2003.