R v Brutton[2024] QSC 24

SUPREME COURT OF QUEENSLAND

1. [1]
   The defendant comes before the Court on an indictment charging offences committed on 22 December 2022, in breach of a parole order. He was convicted on his pleas of guilty and sentenced by me on 29 February 2024. In the course of the sentencing hearing, a legal issue arose as to the proper construction of ss 209 and 211 of the Corrective Services Act 2006 (Qld), namely, whether it was correct, as the prosecution submitted, that upon the imposition of a term of imprisonment for the offences now before the court the defendant was exposed to a “contingent liability” to serve a further period of time under the sentences previously imposed. The hearing was adjourned in order to enable further consideration to be given to this issue, and further submissions to be provided. Having formed the view that the defendant was not exposed to any contingent liability, I proceeded to sentence the defendant and articulate my reasons for the sentence at the end of the hearing. I indicated to the parties that I proposed to publish, in more detail, my reasons for reaching that view, which flow from the proper construction of the relevant statutory provisions. As this is an issue which, in my experience, arises with some frequency, I considered it appropriate to do so, separately from the sentencing remarks.

2. [2]
   To understand the issue, it is helpful to understand the relevant chronology, which is as follows:

3. [3]
   On 29 February 2024, the defendant was sentenced to four years’ imprisonment on each of the counts of aggravated possession of dangerous drugs and six months’ imprisonment for the failure to provide the PIN (that is, the offences committed on 22 December 2022), to be served concurrently (having regard to the overall length of the period of imprisonment the defendant has and will serve). The time served from 22 December 2022 to 4 April 2023 (when he was granted bail, even though not released) was declared as time served under the sentence. The date for eligibility for parole was fixed at 28 November 2024 (nine months from the date of sentence, but 12 months taking into account the time served).

4. [4]
   As already noted, the prosecution submitted that the imposition of a term of imprisonment for the 22 December 2022 offences would engage ss 209 and 211 of the Corrective Services Act “and expose the defendant to contingent liability up to approximately eight months (236 days) from 23 December 2022 – 15 August 2023”.

5. [5]
   That submission was made by reference to R v Bliss [2015] QCA 53; R v Smith [2013] 397 and R v Hall [2018] QSC 101, although the prosecutor acknowledged the point was not addressed specifically in any of those cases. I will return to them shortly.

6. [6]
   The question depends upon the proper construction of the legislative provisions.

7. [7]
   Chapter 5, part 1 of the Corrective Services Act deals with parole orders. Division 5 of that part contains provisions in relation to “amending, suspending or cancelling parole order(s)”. That division is then further divided into “chief executive powers” (subdiv 1), “parole board powers” (subdiv 2, ss 205-208), “requests for immediate suspension” (subdiv 3), “automatic cancellation” (subdiv 3, ss 209-210) and “effect of cancellation” (subdiv 4, s 211).

8. [8]
   Section 205(2)(c) of the Corrective Services Act provides that the parole board may, by written order, “… suspend a parole order if the prisoner subject to the parole order is charged with committing an offence”. For the purposes of this provision, “suspend” is defined in schedule 4 of the Act to mean “suspend for a fixed or indeterminate period”.

9. [9]
   Section 205 also confers power on the board to cancel a prisoner’s parole order.

10. [10]
    Section 208 empowers the parole board to reconsider and change its decision in relation to suspension or cancellation of a parole order.

11. [11]
    A prisoner who remains in the community after their parole order has been suspended or cancelled is “unlawfully at large” (see the definition of that term in schedule 4 of the Act). The period while the person is “unlawfully at large” does not count as part of the prisoner’s period of imprisonment (s 112(4) of the Act).

12. [12]
    Section 206(1) provides that, if the parole board suspends or cancels a prisoner’s parole order, either the board, or a magistrate on the application of the board, may issue a warrant for the prisoner’s arrest. If the order was suspended, s 206(3)(a) provides that, when arrested, the prisoner must be taken to prison “to be kept there for the suspension period”. If the order was cancelled, s 206(3)(b) provides that the prisoner must be taken to prison “to serve the unexpired portion of the prisoner’s period of imprisonment”.

13. [13]
    There is no definition of “suspension period” in the Corrective Services Act. It is reasonable to infer that it means the period during which the parole order is suspended (whether that is a fixed or indeterminate period). There is also no provision in the Corrective Services Act which says that the period while a person is in custody “for a suspension period” does not count as part of the prisoner’s period of imprisonment. That would be fundamentally unjust in any event.

14. [14]
    In this case, no warrant was issued – because the defendant was arrested as a result of being charged with the 22 December 2022 offences. He was nevertheless kept in prison for the “suspension period” – which, as it turns out, was the unexpired portion of his previously imposed period of imprisonment (which expired on 15 August 2023).

15. [15]
    Separately from s 205, s 209(1) of the Corrective Services Act provides for automatic cancellation of a parole order “if the 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”. In those circumstances, the parole order is taken to have been automatically cancelled on the date on which the offence occurred. That applies whether or not the prisoner is sentenced to the other period of imprisonment before or, as in this case, after the parole order has expired (s 209(2)(a)).

16. [16]
    Section 209 is expressed as “subject to section 205” (s 209(2)(b)). Presumably, that is intended to address the situation where the parole board has already cancelled a prisoner’s parole order (as opposed to suspending it), prior to the other period of imprisonment being imposed.

17. [17]
    Where a prisoner’s parole order is automatically cancelled under s 209, s 210(1) of the Corrective Services Act provides for the issue of a warrant for the prisoner’s arrest, either by the parole board or a magistrate. Section 210(3) provides that, when arrested, the prisoner must be taken to prison to serve the unexpired portion of the prisoner’s period of imprisonment. In the present case, as at the date of sentence (29 February 2024), for the reasons already given, the defendant had already served the unexpired portion of his period of imprisonment – whilst he was serving “the suspension period”.

18. [18]
    It is to be noted that the Corrective Services Act makes separate provision for the issue of a warrant and arrest of a prisoner, where the parole board suspends or cancels their parole order (s 206) and where their parole order is automatically cancelled as a consequence of the imposition of a further period of imprisonment (s 210).

19. [19]
    Section 211 deals with the effect of cancellation of a parole order, whether that is done by the parole board under s 205 or, automatically, by operation of s 209.

20. [20]
    Section 211(2) provides that the time for which the prisoner was released on parole before the event that resulted in the decision by the board to cancel their parole (under s 205(2)) or before they committed the offence, the sentence for which triggered automatic cancellation (under s 209), counts as time served under the prisoner’s period of imprisonment.

21. [21]
    That makes sense, having regard to s 214 of the Act, which provides that “a prisoner released on parole is taken to be still serving the sentence imposed on the prisoner”. That is the point of parole – namely, “to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served minimum time”.^[1] While a person is released on parole, and before their parole is suspended or cancelled, or they commit an offence which sees them later sentenced to imprisonment, they are “serving their sentence” albeit in the community. Once they breach the conditions of that “conditional freedom”, they are liable again to serve the sentence in actual custody.

22. [22]
    Of course the corollary of s 211(2) is that any time the prisoner remains released (that is, in the community) after the event that results in cancellation of their parole does not count as time served under their period of imprisonment. As already explained, after cancellation of their parole order, a prisoner is “unlawfully at large”. But, for the reasons already expressed, the situation where they are in custody after the relevant event is different.

23. [23]
    Subsection 211(3) then provides that:

“Despite section 206(3)(b), the parole board may, by written order, direct that the prisoner serve only part of the unexpired portion of the prisoner’s period of imprisonment.” [underlining added]

24. [24]
    This is the section that led the prosecution to make the submission that the imposition of a term of imprisonment for the current offences will engage ss 209 and 211 of the Corrective Services Act “and expose the defendant to contingent liability up to approximately eight months (236 days) from 23 December 2022 – 15 August 2023”. The effect of the submission was that it was within the discretion of the parole board to require the defendant to serve that portion of about eight months, following automatic cancellation of his parole order.

25. [25]
    In my view, this is incorrect. In the circumstances of this case, there is, now, no “unexpired portion of the prisoner’s period of imprisonment”. The defendant has served all of that time, whilst in custody for “the suspension period”. The decision of the Court of Appeal in R v Pashen [2022] QCA 111, although not addressing this point expressly, supports this conclusion. On the facts in that case, which are similar to this one, the defendant was released on parole and committed an offence 44 days later. He was returned to custody the day after committing the offence that breached his parole and remained there until sentenced for the later offence. Although the Court uses the language of “liable to serve” the remainder of the earlier sentence (at [11]), it is clear that the fact the defendant was in custody for that time was regarded by the Court as meeting that liability (at [14]).^[2]

26. [26]
    The authorities referred to by the prosecution in support of its submission do not compel a different conclusion.

27. [27]
    In R v Smith [2013] QCA 397, the Court of Appeal explained the operation of ss 209 and 211, in the context of the requirement to impose a parole eligibility date under s 160B. On the facts in that case, the defendant had been on parole for just over a month when he committed the first of a series of offences in breach of his parole. That series continued for about eight months whilst he was in the community, at which point he was arrested and taken into custody. The time he was on parole up until the first offence was time served as part of the sentence previously imposed (as provided for by s 211(2) and s 214), but the time after that, until his arrest, was not (Smith at [24] and [32]). That remaining time was described, in Smith at [30], as a “contingent liability” – that is, it was still time the defendant was liable to serve (although the Court did not address the meaning of s 211(3), and any discretionary power conferred on the parole board in that regard). Smith emphasises that time the prisoner spends outside of prison, in the community, after committing an offence in breach of parole does not count as time serving the sentence (at [31]). Smith is not authority for the proposition that time spent inside a prison, after committing an offence in breach of parole, does not count as time serving the sentence.

28. [28]
    In R v Bliss [2015] QCA 53, the offender had been in the community for about two and a half months before reoffending on parole. His parole was cancelled by the board 28 days after that offence. It was recognised that he was still required to serve that 28 days, quite apart from any term of imprisonment imposed for the later offending (see at [10] and [14]), but there was no reference to any discretion in the board in that respect.

29. [29]
    R v Hall [2018] QSC 101 is a decision of Dalton J, as her Honour then was, which applied the statutory provisions consistently with the analysis in Smith and Bliss, and made some additional comments about the last few paragraphs of Smith (in relation to backdating of a sentence) which are unnecessary to refer to here. The facts in Hall were similar to Smith and Bliss, in that the offender had been on parole for a period of time before committing an offence, then remained in the community for a time before committing further offences after which he was arrested. At paragraph [15] of Hall, Dalton J said:

“Sections 210(3) and 211(2) of the CSA show that the legislative intention is that upon cancellation of a parole order the offender is to return to jail. They are to serve a period of time equal to the period between the date of the commission of the offence for which the triggering sentence is imposed, and the full-time release date on the original sentence. There is however a provision allowing the Queensland Parole Board to direct that the offender serve only part of that period of time – s 211(3).”

30. [30]
    Hall does not otherwise consider the construction of s 211(3) – in particular, the question I pose below, arising from the fact that s 211(3) refers only to s 206(3)(b).

31. [31]
    In a case such as the present, there is no unexpired portion of the previous sentence – it has already been served in full. But in a case where a defendant reoffends, whilst on parole, and remains in the community for some time after that before returning to custody (as in Smith, Bliss and Hall), they do remain liable to serve that time (that they were in the community, after reoffending). How that is dealt with, in terms of the legislation, seems to depend on a number of variables, including whether the parole order was court ordered or board ordered;^[3] whether the earlier period of imprisonment (the parole order in respect of which is later cancelled due to reoffending) and the later term of imprisonment form one unbroken duration of imprisonment or whether there is a break inbetween;^[4] whether and, if so, when the parole board suspends the parole order; the length of the term(s) of imprisonment imposed for the later offending; and how the later sentencing court exercises its discretion as to any remission of that term (that is, by fixing a date for release on parole or eligibility for parole, or partially suspending the later sentence^[5]).

32. [32]
    There is one curiosity that arises from close consideration of the words used (and not used) in s 211(3) of the Corrective Services Act. It is unnecessary, in the circumstances of this case, to resolve this, because the defendant has served the whole of the “unexpired portion” of his period of imprisonment. But in a case where a prisoner has not, by the time of the later sentence, served the whole of the unexpired portion (for example, because they remained in the community for a period of time, after the breaching offence) it may be necessary to address the following issue.

34. [34]
    As a matter of construction, if it was intended that the parole board have a discretion to direct that a prisoner serve only part of the unexpired portion, regardless of whether the cancellation was the act of the board or automatic (following imposition of a later sentence by the court), one might have expected s 211(3) to commence by saying “[d]espite s 206(3)b) and s 210(3)…”.

35. [35]
    Section 211(3) was enacted in essentially its present terms in 2006 (the only change has been to refer to parole board, rather than Queensland board). The explanatory memorandum accompanying the Bill which became the 2006 Act does not assist in terms of identifying the legislative intention, although does seem to assume that the power conferred on the board by s 211(3) applies where the parole order is cancelled by the board or automatically.  The relevant part reads:

“Clause 211 operates where a prisoner’s parole order has been cancelled in the circumstances provided for under clause 205(2) or clause 209 of the Bill.

Subclause (2) of the Bill also provides the circumstances where the time for which the prisoner was released under parole counts as time served for the prisoner’s period of imprisonment.

Example —

A prisoner is sentenced to 6 years imprisonment to commence on 15 June 2006 which will expire on 14 June 2012. The prisoner is released on parole on 15 June 2009. On 30 June 2011 the prisoner is convicted of an offence committed on 15 June 2010 and sentenced to imprisonment. The 4 year period from 15 June 2006 (the day the sentence commenced) to 14 June 2010 (the day before the commission of the new offence) is taken to be time served in relation to the 6 years imprisonment. This 4 year period incorporates 3 years in custody and 1 year on parole. The 1 year parole period from 15 June 2005 to 14 June 2006 is commonly referred to as ‘street time’.

The 380 day period from 15 June 2010 (the day the offence was committed) to 29 June 2011 (the day before the prisoner was returned to prison) is not counted as time served in relation to the 6 years imprisonment. Effectively the prisoner has served 4 years imprisonment and now has to serve the remaining 2 years imprisonment.

The prisoner’s period of imprisonment will now expire on 30 June 2013. The clause also provides that despite the effect of clause 206(3)(b) the Queensland Parole Board may, by written order, direct that the prisoner serve only a part of the unexpired period of imprisonment rather than the entire unexpired portion of their period of imprisonment. Only the Queensland Parole Board may make such an order.

Example —

Clause 206(3)(b) provides for the arrest of a prisoner, and if the order was cancelled, the prisoner is to serve the unexpired portion of the prisoner’s period of imprisonment. However, referring to the example given for subclause (2) the Queensland board may order that the prisoner serve 18 months of the remaining 2 years imprisonment. The prisoner’s period of imprisonment would then expire on 30 December 2012.”

36. [36]
    I did initially consider that there was a rational explanation for the choice of wording in s 211(3), limited as it is to s 206(3)(b) (which relates to the situation where the board cancels a prisoner’s parole order). That is, that for there to be an automatic cancellation of a prisoner’s parole order, a court must have imposed a sentence of imprisonment for the later offending. In that context, it might be thought inappropriate, or at least surprising, for the parole board to retain a discretionary power to determine how much of the “unexpired portion of the prisoner’s period of imprisonment” the prisoner has to serve, when a court has exercised its discretion to impose a subsequent term of imprisonment and to make orders for the time and circumstances in which the prisoner should be, or be eligible for, release. However, the complexities continue because that analysis is only straightforward when the later term of imprisonment forms part of the overall “period of imprisonment” and a parole eligibility date is fixed. Different considerations would arise where the periods of imprisonment are not “unbroken”, a parole release date is set for the later offending or a partially suspended sentence is imposed.

37. [37]
    This particular dilemma remains to be resolved in another case, where it arises for determination, and so I will say no more about it other than to observe that, given these provisions concern the liberty of individuals, it is unsatisfactory that they are confusing and unclear.