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Queensland Judgments
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Attorney-General for the State of Queensland v Perkins

Unreported Citation: [2020] QSC 100
EDITOR'S NOTE

Here, the Court was required to consider a technical but important question: whether, on a proper construction of ss 23 and 24 of the Dangerous Prisoners (Sexual Offenders) Act 2003, a sentence of imprisonment to the rising of the court is a “term of imprisonment” for the purpose of Div 6, Pt 2. The Court concluded that it is not.

Davis J

6 May 2020

The respondent, convicted of a “serious sexual offence”, was the subject of a supervision order made under s 30(3)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, and he had been under supervision for 10 years. [1]. The relevant order was made on 6 May 2010. [3]. A dispute arose as to whether the order had been extended. The dispute arose after the respondent was taken into custody on 30 May 2013 subsequent to being charged with breaching his order. He remained in custody on remand for 6 days when he came before the Magistrates Court at Brisbane and entered a plea of guilty. He was convicted and “sentenced to the rising of court”. [4].

The parties’ arguments about the key issue

The applicant contended that when the respondent was sentenced to the rising of the court, he was sentenced “to a term of imprisonment” for the purposes of s 23. It was argued that the length of the term of imprisonment (which may only have amounted to a few moments) was irrelevant. Since the respondent was in custody for at least part of the day upon which he was sentenced, s 24(2) was triggered and the supervision order was extended by that one day, in addition to the five days on which he was on remand. [23].

Conversely the respondent submitted that it is not the case that an unspecified and nominal sentence of imprisonment such as “to the rising of the court” was not a “term of imprisonment” pursuant to ss 23 and 24 and, accordingly, the supervision order was not extended by any of the six days identified by the applicant. [24]. In the alternative the respondent argued that even if the respondent’s sentence to the rising of the court was a sentence to a term of imprisonment, since he was released almost immediately, in effect the supervision order was extended by the five days he spent on remand but not the sixth day (of sentencing). [25].

The Court’s determination

At the outset, his Honour observed that the primary purpose of the task before him was to ascertain the meaning of the wording of the provisions by considering the statute as a whole, in the context of the purposes of the statute and the mischief sought to be remedied: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at [14], [35]–[40]; SAS Trustee Corporation v Miles (2018) 92 ALJR 1064 at [20] and [41]; Acts Interpretation Act 1954, ss 14A and 14B.

In a careful judgment, he formed the view that in the current matter no “term of imprisonment” had been imposed, as understood by Div 6. [48]. He clarified that since, upon being sentenced the respondent was not incarcerated but rather was released within minutes, the operation of the supervision order to which he was subject was frustrated. That scenario did not sit well with the scheme of Div 6 which contemplates that the period of the “term of imprisonment” is to be added to the supervision order so that the supervised prisoner spends the time equivalent to the whole term of the supervision order within the community. That was because in the case of a sentence of imprisonment to the rising of the court that period is “neither defined nor discernible”. His Honour commented that logically:

It surely cannot be contemplated that a few minutes, or even an hour or two, will be added to the supervision order to represent the time between the respondent being sentenced and the court rising. It cannot be contemplated that Division 6 operates so that rather than the supervision order ending at midnight on its last day, it ends in the early hours of the next morning (but that need not be finally determined)”. [48].

The Court preferred the view that the legislation intends that there be an identifiable period of time which, together with any remand time, is added to the period of supervision set by the supervision order. His Honour did not regard an order for “imprisonment” for some undefined period such as “the rising of the court” as amounting to a “term of imprisonment” for the purposes of Div 6. He commented that “[t]he sentence here was one of imprisonment in only the most artificial ways”. [49].

In the result, neither the date of the sentence nor any of the five days of remand were added to the term of the supervision order [50] and his Honour declared that the supervision order expired at midnight on 6 May 2020. [51].

A de Jersey

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