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Radic v State of Queensland[2022] QSC 134

Radic v State of Queensland[2022] QSC 134

SUPREME COURT OF QUEENSLAND

CITATION:

Radic v State of Queensland & Ors [2022] QSC 134

PARTIES:

SAVO RADIC

(applicant)

v

STATE OF QUEENSLAND

(first respondent)

SUPERINTENDENT TRACEY CROSBY

(second respondent)

EVA WU

(third respondent)

KERRY ALVAREZ

(fourth respondent)

FILE NO/S:

BS No 7104 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED EX TEMPORE ON:

21 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2022

JUDGE:

Crowley J

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – PAROLE – OTHER MATTERS – where the applicant was sentenced to another period of imprisonment for an offence committed during the period of his parole order –where the applicant was granted conditional bail pending an appeal against his sentence – where Corrective Services refused to authorise release of the applicant – where the applicant seeks a declaration that he was unlawfully imprisoned – whether the declaration should be made

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – where the applicant was sentenced to another period of imprisonment for an offence committed during the period of his parole order – whether s 209 of the Corrective Services Act 2006 (Qld) operated to automatically cancel the applicant’s parole order

Acts Interpretation Act 1954 (Qld), s 14A

Bail Act 1980 (Qld), s 8

Corrective Services Act 2006 (Qld), s 3, s 209(1), s 209(3), s 211

Criminal Code Act 1899 (Qld), sch 1 s 617G

Penalties and Sentences Act 1992 (Qld), s 158A

Barry v Commissioner of Police [2015] QDC 61, considered

Momcilovic v R (2011) 245 CLR 1; [2011] HCA 34, cited

Project Blue Sky Incorporated v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

R v Hall [2018] 3 Qd R 628; [2018] QSC 101, considered

United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60, cited

COUNSEL:

M J Henry for the applicant

S Keim SC for the respondents

SOLICITORS:

DL Legal for the applicant

Crown Law for the respondents

  1. [1]
    By originating application filed on 17 June 2022, the applicant seeks declaratory relief and other orders. The declaration sought is in these terms:

“A declaration that upon, and from:

  1. (a)
    his Honour Magistrate Mr Saggers, in the Magistrates Court of Queensland, at Brisbane, in proceeding number 906 of 2022, on 30 May 2022, ordering that the applicant be admitted to conditional bail (the “Order”); and
  2. (b)
    the first and second and third and fourth respondents:
    1. not complying with, and not giving effect to, the Order, on and from 30 May 2022;
    2. failing or refusing to release the applicant from prison at the Woodford Correctional Centre at Woodford in the State of Queensland, on and from 30 May 2022; and
    3. causing or permitting the applicant to continue to be imprisoned at Woodford Correctional Centre at Woodford in the State of Queensland, on and from 30 May 2022;

the first and second and third and fourth respondents have unlawfully imprisoned the applicant.”

  1. [2]
    There are then further other orders that are sought which, as I understand the submissions, would be tailored and made to give effect to any declaratory relief that I granted. 
  2. [3]
    There is also within the originating application relief sought by way of an interlocutory injunction.  Given though that I am now in a position to determine this matter, that aspect of the application is redundant. 
  3. [4]
    This matter came before Justice Burns last Friday, 17 June 2022 for a hearing of the application.  The application was adjourned to today.  Obviously, there has been some urgency in respect of the matter for it to be heard and determined, given the contention of the applicant that he is being unlawfully held in custody and improperly denied release on bail granted to him by Magistrate Saggers.  As noted, he is currently incarcerated at Woodford Correctional Centre.
  4. [5]
    There are four respondents to the application.  The State of Queensland is the first respondent.  The second respondent is Superintendent Tracey Crosby, whom I understand to be a sentence management supervisor at the correctional centre.  The third and fourth respondents are Corrective Service officers or employees, whom I understand to be involved in the calculation and management of the applicant’s sentence and correspondence that has been engaged in with the applicant’s legal representatives. 
  5. [6]
    The respondents accept that the Court has the power to make the orders as sought if the applicant’s contentions are accepted. That concession was perhaps more directed towards the interim injunction relief that was sought which, as I have indicated, is now redundant.  Nevertheless, the respondents accept that the question of interpretation which is at the heart of this application is a matter that the Court is able to determine and, if need be, the Court is able make the relevant declaration as sought.

Background

  1. [7]
    With respect to the facts of the matter, I have before me the affidavit of Michael James Henry, affirmed 16 June 2022.  I note that Mr Henry appears on behalf of the applicant in this application.  It is somewhat unusual that counsel would make an affidavit in a proceeding in which he also appears as counsel.  But, as Mr Henry explains in his affidavit at paragraph 2, the affidavit was made in the exceptional circumstances of this case.  No issue was taken by the respondents with that course, and the Court does not consider that to be an issue in this matter. 
  2. [8]
    The relevant facts as set out in the affidavit are as follows.  On 25 March 2022, the applicant was sentenced by Magistrate Young at the Holland Park Magistrates Court in respect of one charge of driving whilst disqualified by Court order and another charge of driving an unregistered vehicle.  He was convicted and sentenced to 12 months imprisonment in respect of the driving whilst disqualified offence and he was convicted and not further punished in respect of the charge of driving an unregistered vehicle. 
  3. [9]
    In addition to these matters, two prior suspended sentences that had been imposed by Magistrate Shearer at Richlands Magistrates Court were activated in full, because Magistrate Young was not satisfied that it was unjust to do so. 
  4. [10]
    On 20 April 2022. the applicant instituted an appeal against his sentence.  The affidavit of Mr Henry annexes a copy of the notice of appeal to the District Court, which I note in the particulars of the sentence on the first page of that document wrongly indicates that there was a 12-month sentence of imprisonment for each offence that was imposed by the learned magistrate.  There are 14 grounds of appeal that are enumerated in the notice of appeal, and I am told that that appeal is being pursued as expeditiously as possible in the circumstances. 
  5. [11]
    Mr Henry deposes to the fact that the primary issue at sentence was, and will be on the hearing of the sentence appeal, whether a penalty ought to have been imposed such that it would not involve automatic cancellation of the applicant’s parole under subsection 209(3)(b) of the Corrective Services Act 2006.  I pause there to note that that subsection is an exception to the automatic cancellation provision in subsection 209(1). According to that exception, automatic cancellation of a prisoner’s parole order will not apply if the period of imprisonment is required to be served in any of the ways set out in subsection 209(3)(b), namely if it is to be served under an intensive correction order, or it is a wholly suspended sentence, or it is required to be served until the rising of the Court. 
  6. [12]
    On 31 May 2022, an application for bail was granted by Magistrate Saggers for the release of the applicant pending the hearing of the appeal against sentence.  Mr Henry deposes that after bail was granted by Magistrate Saggers, Corrective Service officers – in particular, the third respondent – communicated to him that Corrective Services was refusing to authorise the release of the applicant on the grant of bail.  The apparent basis upon which that refusal was made was because the applicant was to be detained in custody as “…the sentence ha[d] not been stayed”. 
  7. [13]
    On 1 June 2022, the applicant was provided with a number of documents further setting out the purported justification for his continued detention.  They appear annexed to Mr Henry’s affidavit and, in particular, in the exhibited materials at pages 20 to 22 there are documents from Queensland Corrective Services which set out the circumstances of the applicant’s current detention, a sentence calculation, and an explanation of the sentence.  According to the document at page 20, under the heading “Lawful detention/release comments”, it is noted:

“Bail only has been granted in relation to a District Court appeal lodged regarding sentence imposed 25.03.2022. 

“The sentence has not been overturned/quashed or stayed, therefore, the effect of section 209 (automatic parole cancellation) and section 211 (time not served) of the Corrective Services Act 2006 remains applicable until such time as an appeal decision has been made.”       

  1. [14]
    The document further continues under “Calculation Comment”.  Next to the entry for 31 May 2022:

“Appeals Bail granted, automatic cancellation of the parole order continues to have effect.”

  1. [15]
    And then on 1 June 2022:

“Sentence calculation following grant of appeals bail on 31.05.2022, noting automatic parole cancellation and 169 days time not served remains applicable is confirmed correct.”

  1. [16]
    The explanation of the documents and the decision to continue to detain the applicant in custody appears at page 22 of the exhibited material.  It sets out the various sentences which apply or which are relevant to the determination of the period of calculated sentence, as well as the continued detention.  It notes that on 21 February 2019, the applicant was released to immediate Court-ordered parole after being sentenced to three years imprisonment.  It further notes that on 29 June 2021, he was sentenced to 10 months imprisonment for an offence committed whilst on parole, which resulted in automatic cancellation of the parole order and incurred a 140-day period of time not served.  The revised expiry date of his sentence was calculated as 10 July 2022.  The applicant was given a parole release date of the same date as the sentence, 29 June 2021, being Court-ordered immediate release. 
  2. [17]
    The entry for 25 March 2022 notes the 12 months imprisonment imposed for the offence of disqualified driving and the conviction, with no further punishment, for the offence of unregistered vehicle.  It further notes that:

“The court also re-activated suspended sentences originally imposed on the 24/05/2019 and 01/10/2019.  An automatic cancellation of the parole order occurred and incurred 169 days period of time not served.  A revised expiry date of sentence was calculated as 24/03/2023.”

  1. [18]
    The note then refers to 31 May 2022, when the applicant was granted bail pending the outcome of his District Court appeal against sentence in relation to the matters from 25 March 2022.  The note concludes:

“Therefore, until a court has made a decision in relation to your appeal, you are required to serve the unexpired portion of your sentence as the cancellation of your Court Ordered Parole order occurred automatically on the date you were convicted of Disqualified Driving offence.  The serving of the unexpired portion is in accordance with section 209 and section 211 of the Corrective Services Act 2006

“Your revised custodial expiry date has been calculated as 26 December 2022.”

  1. [19]
    The affidavit of Mr Henry thereafter refers to and exhibits various items of correspondence between the parties concerning the applicant’s challenge to his continued detention and the basis upon which it is asserted by Corrective Services that his continued detention was justified which, as I understand it, did not resolve the matter and has culminated in the present application.  The applicant therefore brings this application as he contends there is no other option available to him to attempt to secure his release in accordance with the appeal bail granted to him. 

The Proper Construction of the Corrective Services Act 2006 (Qld) s 209

  1. [20]
    The critical issue for determination in this matter is the proper construction and application of section 209 of the Corrective Services Act and, in particular, the effect of subsection 209(1).  Section 209 provides:

“209 Automatic cancellation of order by further imprisonment

(1) If a prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the prisoner’s parole order, the order is taken to have been automatically cancelled on the date on which the offence occurred.

(2) Subsection (1) applies—

(i) whether or not the prisoner is sentenced to the other period of imprisonment before or after the parole order has expired; and

(ii) subject to section 205.

(3) However, subsection (1) does not apply if—

(a) the prisoner is required to serve the period of imprisonment mentioned in the subsection in default of—

(ii) paying a fine or another amount required to be paid under a court order; or

(iii) making restitution required to be made under a court order; or

(b) the period of imprisonment mentioned in the subsection—

(i) is required to be served under an intensive correction order; or

(ii) is wholly suspended under the Penalties and Sentences Act 1992, part 8; or

(iii) is required to be served until the court rises.”

  1. [21]
    None of the exceptions in subsection 209(3) presently apply to this application. 
  2. [22]
    The applicant contends that the resolution of this matter involves solely a question of legislative interpretation and involves no administrative decision.  That appears to be the case.  The applicant submits that section 209 of the Corrective Services Act is ambiguous.  In written submissions, the applicant, at paragraph 23, sets out the competing interpretations of section 209, the effect being that the applicant contends that section 209 cannot operate in the narrow manner alleged by the respondents because such a construction or interpretation would be contrary to longstanding principles of statutory construction, Australian precedents, and relevant legislation. 
  3. [23]
    On the other hand, paragraph 23 of the applicant’s submissions sets out the respondents’ argument, which is to the effect that the respondents contend the operation of section 209 of the Corrective Services Act is such that, according to the applicant’s description, it defeats section 8(1) of the Bail Act, section 158A of the Penalties and Sentences Act, section 617G of the Criminal Code, and that the Magistrates Court would need to order a stay of the sentence in order to see the applicant released from custody awaiting appeal. 

The Applicant’s Submissions

  1. [24]
    The applicant contends that various principles of construction militate in favour of his submission as to the correct interpretation of section 209 which, on that interpretation, would provide the basis for the relief sought by the application, it being said that there would otherwise be unlawful continuing detention of the applicant.  The applicant has referred me to the principles of construction, which are not contentious, and the various authorities which confirm those principles, including the well-known case of Project Blue Sky Incorporated v Australian Broadcasting Authority (1998) 194 CLR 355 at 384, as well as the statement of principle by Heydon J in Momcilovic v R (2011) 245 CLR 1 at [441] to [442], pp 175 to 176. 
  2. [25]
    The principles of construction that apply in this case as referred to by those authorities confirm that the interpretation exercise must start with the text of the statute.  The statutory provision in question must be construed in the context of the Act as a whole, having regard to the purpose of the provision and the legislative scheme, and the objects of the Act and, ultimately, giving effect to the intention of the legislature.  That approach is further confirmed by section 14A(1) of the Acts Interpretation Act 1954, which states:

“…the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”   

  1. [26]
    In this case, I have been referred to the objects of the Corrective Services Act which are set out in section 3 which is titled “Purpose”.  Subsection (1) states:

“The purpose of corrective services is community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.”

  1. [27]
    Subsection (2) then states:

“This Act recognises that every member of society has certain basic human entitlements and that, for this reason, an offender’s entitlements, other than those that are necessarily diminished because of imprisonment or another Court sentence, should be safeguarded.”

  1. [28]
    And subsection (3) provides:

“This Act also recognises— 

(a) the need to respect an offender’s dignity; and

(b) the special needs of some offenders by taking into account— 

(i) an offender’s age, sex or cultural background; and

(ii) any disability an offender has.” 

  1. [29]
    In addition to the principles of construction that have been referred to by the applicant, the applicant also submits that the interpretation of section 209 for which he contends is consistent, and ought to be construed harmoniously, with other legislative provisions.  In particular, the applicant refers to provisions of the Bail Act, particularly sections 8 and 20, and the applicant also relies upon common law principles concerning grants of bail, citing the decision of the High Court in United Mexican States v Cabal (2001) 209 CLR 165; section 158A of the Penalties and Sentences Act, in respect of which the applicant also refers to the decision of Wall QC DCJ in Barry v Commissioner of Police [2015] QDC 61; and section 671G of the Criminal Code
  2. [30]
    The applicant further relies upon the principle of legality which, as I earlier noted, was referred to in Momcilovic v R, and submits that it is a principle of interpretation that legislation which abrogates or affects a person’s liberty or a person’s basic human rights must be construed in favour of the subject person.  The applicant has also made reference – in the written submissions, but not in oral submissions – to the Human Rights Act 2019 and the human rights in sections 29 and 30.  I have had regard to those provisions, and the human rights protected by that Act, and I have also had regard to section 48 of the Act regarding the approach to interpretation of statutory provisions.  I have taken those matters into account in my consideration of the exercise of construction with respect to section 209. 

The Respondents’ Submissions

  1. [31]
    The respondents submit that section 209 is not ambiguous, that it is quite clear and operates according to its terms.  The submission is that the effect of section 209 is that the parole order is taken to have been automatically cancelled on the date the offence occurred and therefore the parole order previously made is of no effect and the detention of the applicant in respect of that previous sentence is justified and lawful.  
  2. [32]
    The respondents refer to subsection 8(4) of the Bail Act and notes that the effect of that provision supports the argument raised by the respondents with respect to the effect of the grant of bail, to the extent that the grant of bail by Magistrate Saggers does not abrogate or impinge upon the effect of section 209 in respect of the cancelled parole order.  The respondents further submit that none of the other statutory provisions cited by the applicant assist in the proper construction of section 209.  The respondents note that section 158A of the Penalties and Sentences Act is not relevant to the construction exercise here and, further, the decision in Barry v Commissioner of Police that the applicant relies upon is not inconsistent with their interpretation of section 209. 
  3. [33]
    The respondents have also referred to analogous provisions in Commonwealth legislation, in particular the Migration Act 1958 (Cth), and have referred me to a number of cases concerning that legislation which are said to provide some guidance perhaps to the construction exercise with which I am engaged.  In my view, they are not helpful.  They are decisions made in a different statutory context, and I do not consider that legislative scheme nor the cases which have been referred to me to be of a great deal of assistance in this matter.  The final submission, allied with the principal submission that the respondents make as to the interpretation of section 209, is that the principle of legality does not apply because there is no ambiguity in section 209. 

The Effect of Section 209(1)

  1. [34]
    Having regard to the submissions that have been made, the legislation to which I have been referred and the other authorities and material before me, in my view, section 209(1) is clear in its effect.  In my view, the effect of it is as set out by the respondents.  The result is that the parole order to which the applicant was subject is taken to have been automatically cancelled on the date that the offence for which he has been sentenced occurred.  The effect of that automatic cancellation is that under subsections 211(1)(f) and (2), the period for which the applicant was released on parole before the automatic cancellation of his parole order counts as time served under his period of imprisonment previously imposed and he is liable to serve the unexpired portion of his sentence.  The cancellation means that he no longer has release on the terms of his previous parole order. The granting of appeal bail in respect of the further sentence of imprisonment that triggered the automatic cancellation of the parole order does not prevent the operation of s 209(1).
  2. [35]
    Consistent with those provisions and those conclusions, in my view, the express words of the legislative provision, the objects of the Act, and the purpose of the legislation demonstrate the effect of sections 209 and 211 is plain.  In my view, in keeping with the purposes of the Act, the parole regime primarily exists to enable supervised conditional release of offenders for the purposes of the rehabilitation of the offender and the protection of the community.  Provisions like section 209, which operates to automatically cancel parole, are in my view, part of a scheme that has been designed to further those objectives.
  3. [36]
    I have also been referred by the applicant to a decision of Dalton J in R v Hall [2018] 3 Qd R 628.  In my view, the conclusion that I have reached accords with her Honour’s judgment in that case, where her Honour referred at paragraph 14 to subsection 209(1) of the Corrective Services Act, noting that:

“Section 209(1) CSA provides that a prisoner’s parole order ‘is automatically cancelled’ if the prisoner is sentenced to another period of imprisonment for an offence committed during the period of the order. It is the imposition of the sentence which acts as the trigger to cause the automatic cancellation of the parole order. Subsection (1) applies even if the period of the parole order has expired by the time of sentence: s 209(2).

  1. [37]
    Her Honour further went on at paragraph 15 to state:

“Sections 210(3) and 211(2) CSA show that the legislative intention is that upon cancellation of a parole order the offender is to return to jail.”

  1. [38]
    In my view, that is consistent with the plain words of section 209 and its evident purpose. 
  2. [39]
    I have considered the Bail Act provisions to which I have been referred and, in my view, they are not contrary to, and they do not abrogate, nor impinge upon the interpretation of, section 209(1) which I consider to be the preferable interpretation.  I note section 8(4) of the Bail Act provides that:

“A person to whom bail is granted shall not be released from custody while the person is, for any other cause, being lawfully held in custody.”       

  1. [40]
    That provision contemplates that notwithstanding that a person may have bail in respect of an offence or, indeed, in respect of a matter the subject of an appeal, there may nevertheless be other reasons why a person may lawfully be held in custody.  That is, in my view, consistent with the scheme under which section 209 would give effect to automatic cancellation of parole. 
  2. [41]
    I have also had regard to section 158A of the Penalties and Sentences Act and section 671G of the Criminal Code.  Each of those provisions, in my view, also do not derogate from the interpretation of section 209 that I have concluded is correct.  Those provisions apply where a person has appeal bail but concern how the time served under such a sentence is to be calculated. 
  3. [42]
    Section 158A provides that:

“A term of imprisonment of an offender who appeals against sentence, and is granted bail awaiting the determination of the appeal, does not run during the time the offender is on bail.”      

  1. [43]
    I note that in Barry v Commissioner of Police, Wall QC DCJ considered that the correct interpretation of the words “on bail” in section 158A meant “released on bail”.  That decision and that interpretation of section 158A is not inconsistent with the interpretation of section 209 of the Corrective Services Act that I have reached. 
  2. [44]
    Similarly, section 671G of the Criminal Code provides for the calculation of periods of custody where an appellant is released on bail pending determination of an appeal.  Under subsection (3), where the appellant is released on bail pending determination of their appeal, the period the appellant is released on bail simply does not count as part of any term of imprisonment under the sentence. 

Order

  1. [45]
    Having regard to those matters and in those circumstances, I do not consider that the applicant is presently being unlawfully detained, and I therefore dismiss the application and I make no order for costs.  
Close

Editorial Notes

  • Published Case Name:

    Radic v State of Queensland & Ors

  • Shortened Case Name:

    Radic v State of Queensland

  • MNC:

    [2022] QSC 134

  • Court:

    QSC

  • Judge(s):

    Crowley J

  • Date:

    21 Jun 2022

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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