Queensland Judgments
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Radic v State of Queensland & Ors

Unreported Citation:

[2022] QSC 134

EDITOR'S NOTE

In this case the prisoner was sentenced to another term of imprisonment which had the effect of automatically cancelling a parole order under s 209(1) Corrective Services Act 2006. The prisoner applied for and was granted bail “awaiting an appeal” under s 8(1) Bail Act 1980, however, Corrective Services refused to release the prisoner on the basis that his parole had been automatically cancelled in any event. The prisoner applied for declaratory relief to the effect that, inter alia, he was being “unlawfully imprisoned”. Justice Crowley held that a grant of bail under s 8(1) Bail Act 1980 did not operate to prevent the automatic cancellation of parole where s 209(1) Corrective Services Act 2006 applies. The prisoner was lawfully held in custody. The application was dismissed.

Crowley J (ex tempore)

21 June 2022

Background

The prisoner (“applicant”) was sentenced by a magistrate to a term of imprisonment for an offence. [9]. The applicant had filed an appeal against sentence. [10]. The applicant applied for and was granted bail “awaiting an appeal” under s 8(1) Bail Act 1980 by another magistrate, however, the Chief Executive administering the Corrective Services Act 2006 (“Corrective Services”) refused to release the applicant from custody on the basis that: “The sentence [had] not been… stayed, therefore, the effect of s 209 (automatic parole cancellation) and s 211 (time not served) … remains applicable until such time as an appeal decision has been made”. [12]–[13].

Whether the applicant was unlawfully held in custody

The applicant sought declaratory relief to the effect that, inter alia, he was being “unlawfully imprisoned”. [1]–[2]. The heart of the application was the proper construction of s 209 Corrective Services Act 2006. [20]. Section 209(1) relevantly provides:

209 Automatic cancellation of order by further imprisonment

(1) A prisoner’s parole order is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the order.” [20].

Justice Crowley considered that s 209(1) is “clear in its effect.” [34]. The grant of bail “awaiting an appeal” under the Bail Act 1980 s 8(1) where s 209(1) has application did not operate to prevent automatic cancellation of the parole order, which had the effect of requiring the applicant to serve the “unexpired portion of [an earlier] sentence.” [34]–[35]. It was of note that the Bail Act 1980 s 8(4) relevantly provides:

8 Powers of court as to bail

(4) 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.” [39].

Subsection (4) expressly contemplates a circumstance where a prisoner, such as the applicant, may have been granted bail under subsection (1), however, cannot be released as they are lawfully held in custody for another reason. [40]. Therefore, a grant of bail under s 8(1) Bail Act 1980 does not derogate from or otherwise conflict with the operation of s 209(1) Corrective Services Act 2006. [40]. It followed that the applicant was not being unlawfully imprisoned. [44].

Disposition

In the result, the originating application was dismissed. [45].

D Kerr

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