This decision considers the meaning of the term “period of imprisonment” within s 160B(2) of the Penalties and Sentences Act 1992 (“the PSA”). The defendant had been sentenced for offences committed while on parole prior to his full-time release date. Justice Dalton considers and resolves an apparent inconsistency between R v Smith  QCA 397 and R v Bliss  QCA 53. Her Honour reasons that, as the effect of the sentence imposed for an offence committed while on parole was to cancel the parole order, when that sentence was pronounced the defendant commenced serving an unbroken period of imprisonment including both the term imposed for the offence on parole and the term imposed for the original offence. Therefore the court is required by s 160B(2) to fix a parole eligibility dates.
18 May 2018
On 11 May 2018, the defendant was sentenced following pleas of guilty to offending while on parole. In this decision, Dalton J sets out her reasons why the court could not fix a parole release date but was required by s 160B(2) of the PSA to fix a parole eligibility date only.
Section 160B(2) of the PSA provides:
“If the offender has had a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole.”
The effect of ss 160 and 160A is that a “period of imprisonment” for the purpose of s 160B(2) includes the term of imprisonment a court is imposing at the time of sentence. Section 209 provides for automatic cancellation of a prisoner’s parole order if they are sentenced to a period of imprisonment for an offence committed during the period of the order.
Section 4 of the PSA defines a period of imprisonment as an
“unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment whether –
(a)ordered to be served concurrently or cumulatively; or/p>
(b)imposed at the same or different times,
and includes a term of imprisonment.”
Defence counsel, citing R v Smith  QCA 397, argued that the term of imprisonment to be imposed by Dalton J for the defendant’s offending while on parole would not be part of any longer unbroken period of imprisonment imposed by a Court and therefore s 160B(2) did not apply. .
In R v Smith, the applicant committed further offences while on parole and was required to serve out the remainder of the original sentence in custody. She was not sentenced for the offending while on parole until after her full-time release date. –. The primary judge imposed a further term of imprisonment, but effectively “backdated” the sentence by ordering that the new term was to start immediately at the end of the period of imprisonment originally imposed. On appeal, Morrison JA found that, as a result, the two terms constituted an “unbroken duration” of imprisonment and s 160B(2) applied. Accordingly, the court was required to fix an eligibility date for parole. –.
Justice Dalton considered R v Smith and the subsequent Court of Appeal decision in R v Bliss  QCA 53. –. Her Honour found that, insofar as R v Smith implies that s 160B(2) would not have applied in the absence of the “backdating” order, that decision is incorrect. . As Smith committed an offence while she was on parole the effect of the later sentence was to cancel the parole order and she was then required to serve time in prison equal to the period between the date of commission of the offence and the full-time release date for the original sentence. . Section 160B(2) still applied because when the primary judge imposed the sentence on Smith for offending while on parole she began serving a period of imprisonment and she also began to serve part of the original sentence. . Accordingly, “that period of imprisonment was an unbroken period of imprisonment including both the term imposed by the primary sentencing Judge (in accordance with the definition at s 160 of the PSA) and the term imposed by the Magistrate in July 2012”. . As to R v Bliss, Dalton J observed that in that case there was no question of “backdating”, rather the reasoning was consistent with the approach set out in  of her Honour’s reasons for this decision.
Her Honour concluded that s 160B(2) cannot depend on stochastic factors such as whether there is an order “backdating” the sentence or a declaration of time served, or where the full-time release date has passed at the time of the sentencing for the later offending. .
K W Gover of Counsel