Cummins v Queensland Corrective Services Commission [1994] QSC 54

><....-'9-r:/os~ _/Jfg State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bu:-eau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No 867 of 1993 TERENCE CUMMINS Applicant and QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent BRISBANE .. DATE 17/03/94 JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 ~360. Facsimile: (07) 227 5532 -- 1 of 12 -- 170394 KHW (Mackenzie J) HIS HONOUR: In this matter, the order is that the decision of 1 the Commission made on 18 August 199J be set aside. The matter is remitted to the Commission to be dealt with according to law. I make no order as to costs. ·I publish my reasons. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 12 -- .- ' ' / IN THE SUPREME COURT OF QUEENSLAND No. 867 of 1993 Brisbane Before Mr Justice Mackenzie [Cummins v Queensland Corrective Services Commission] BETWEEN: TERRENCE CUMMINS Applicant AND: QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent REASONS FOR JUDGMENT - MACKENZIE J. Judgment delivered 17/03/1994 Counsel: R Luxton for applicant P Applegarth for respondent Solicitors: Paul Jacko & Co for applicant KM O'Shea, Crown Solicitor, for respondent Hearing Date: 28 February 1994 -- 3 of 12 -- ( \ \. ) IN THE SUPREME COURT OF QUEENSLAND No. 867 of 1993 Brisbane Before Mr Justice Mackenzie [Cummins v Queensland Corrective Services Commission] BETWEEN: TERRENCE CUMMINS Applicant AND: QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent REASONS FOR JUDGMENT -MACKENZIE J. Judgment delivered 17/03/1994 Judicial review is sought of a decision by the respondent that the applicant not be granted any remission on a sentence 12 years' imprisonment except for 70 days Royal remission because his conduct was not of good character during the sentence. The matters particularised as evidence of that are the following:- (a) the applicant committed five minor offences against the Prisons Act, two major offences against it and one breach of discipline under the Corrective Services Act; -- 4 of 12 -- 2 (b) as a result of the major offences committed on 21 November, 1983 and 6 March, 1984 he was sentenced to cumulative sentences of eight months and one month's imprisonment; and (c) he breached his parole order and breached the conditions of a grant of leave of absence resulting in revocation of the parole order and the grant of leave of absence. The essential facts are that the applicant was imprisoned for 12 years on 4 July, 1978 for an offence of robbery with () personal violence whilst armed with a dangerous weapon. He committed a major breach of the Prisons Act, for which he was (-) convicted on 23 March, 1984, by taking part in opposition to lawful authority. He was sentenced to 8 months' imprisonment cumulative upon the 12 years sentence. Then on 23 July, 1984 he ) was convicted of gross insubordination and sentenced to one month's imprisonment cumulative upon the eight months' sentence. On 27 February, 1984 he was released on parole. He admits that in about 1987 he breached the reporting conditions of his parole and that he was arrested on 27 November, 1988 and returned to prison after cancellation of his parole. On 2 September, 1989 and 24 January, 1990 he was found guilty of using abusive words and behaving in an insolent manner respectively. On 27 September, 1990 he was transferred to New South Wales where he was dealt with for a variety of offences for which he received what was in practical terms a term of two years' imprisonment. In December 1990 he was transferred to Queensland. On 7 March, 1991 he applied for unescorted leave of absence on 9 March, 1991 () (_) ·, -- 5 of 12 -- / l \ ) 3 but, having been granted leave, failed to return at the time prescribed in his leave of absence. In fact he remained at large for over 12 months until he was charged with several offences on 30 March, 1992. On 24 June, 1992, he was found guilty of offending against the good order. of the Correctional Centre. According to the applicant's affidavit an indictment was presented in the District Court at Southport on 3 November, 1992 in respect of the charges laid on 30 March, 1992. There was legal argument and it was ordered that the indictment be stayed until such time as there had been a committal hearing on a breaking and entering charge in the indictment. Eventually, on 13 January, 1994, the applicant was discharged on that matter but the remaining charges are outstanding and it will be some time before they proceed, if indeed they do. The applicant says that a submission has been sent to the Director of Prosecutions with a view to having the remaining prosecutions in the District Court discontinued~ The applicant also says.that he intends to defend the charge of being unlawfully absent without leave. The last-mentioned charge remains adjourned in the Magistrates Court, presumably pending the disposal of the District Court charges. It· can be seen from that chronology that it will be some time before the applicant's charges are finally disposed of. It is now necessary to examine the course of events in some detail. The material in evidence before me relating to the Commission's consideration of remissions commences with a letter that the Commission would be considering the applicant's case on 19 May, 1993. On 19 May, 1993 the Commission decided to defer making a decision regarding remission pending the outcome of the -- 6 of 12 -- 4 further charges alleged to have been committed by the applicant while he was at large. The applicant was advised of this decision and on 4 June, 1993 a solicitor from the Prisoner's Legal Service wrote to the Commission asserting that the delay of the Commission in considering the applicant's remission was unreasonable and that there was no real reason why the matter could not be determined at that point of_ time. The applicant also made representations but on 16 June, 1993 the Commission decided not to vary its previous decision. By letter dated 9 August, 1993 the Commission advised the applicant that it was considering not granting him any remission on his sentence of 12 years' imprisonment because it was not satisfied he was of good conduct during the sentence. The letter further advised that in arriving at its "interim decision" the Commission noted that he had committed five minor offences against the Prisons Act, two major offences against the Prisons Act and one breach of discipline under the Corrective Services Act. A respon~e from (j () the applicant was invited within 21 days. (~) On 10 August, 1993 a solicitor from the Prisoners' Legal Service wrote to the Commission requesting that the decision-be made immediately at· the expiration of the 21 day period for submissions. Otherwise legal proceedings would be commenced to compel the Commission to make a decision on the applicant's eligibility for remissions .. On 12 August, 1993 the Commission inquired whether the applicant would be making a submission.. By a letter of the same date submissions were made on the applicant's behalf. It was pointed out that the majority of offences occurred between 1979 and 1984. Reference was made to C) ., -- 7 of 12 -- ) 5 Regulation 27 of the Corrective Services Regulations 1989 and it was submitted that it would be unreasonable to give substantial weight to those offences. It was submitted that there was no other option for the Commission but to grant the remissions. On 18 August, 1993 the Commission decided that the applicant would not be granted any remission on the sentence of 12 years' imprisonment except the 70 days Royal remission because his conduct was not good during the sentence. The grounds for the decision have been recited above. The application for review was filed and the reasons for the decision were provided. Bail was granted to the applicant in respect of all outstanding charges. If he had been granted remissions on the portion of the sentence which post-dates the 1988 return to custody, which was relied on by the applicant as being the . relevant date for further consideration with respect to remissions, he would have been entitled to be released on remission in October 1993. Regulation 28 provides that the Commission shall not grant remission in respect of any period of a sentence of imprisonment served by a prisoner before he commits any indictable offence.or offence punishable on summary conviction. It further states that the prisoner may become eligible by good conduct and industry for remission on the balance of his original sentence. The reality of the matter is that there are three breaches of prison discipline following that date. Admittedly they were all minor breaches consisting of using abusive words, behaving in an insolent manner and offending against the good order of the Centre. Those matters were open to be taken into account in the -- 8 of 12 -- 6 balance although having regard to their nature they would be expected to play a commensurate part in the final decision. However in addition to those breaches of discipline the Commission relied on the breach of the parole order (which is admitted) and the breach of the conditions of the grant of leave (in respect of which the charge remains unresolved). The difficulty is in knowing what weight the Commission assigned to the breach of the condition of the grant of leave in coming to its decision. It could hardly be expected that the Commission could ignore the fact that prima facie the applicant was granted (-) one day's leave and remained at large for more than 12 months. The Commission might well have assumed in those circumstances that any defence to the charge would be tenuous. This kind of situation brings into focus the difficult cases where the date upon which a person will be eligible for release if remissions are granted is reached before a charge which if proved will have an effect on the question of whether the .person C) has been of good conduct during imprisonment is disposed of. (J Where, in terms of Regulation 27 a period served by a prisoner will be unable to be taken into account if a conviction is recorded for an offence committed while the sentence is being served but the trial for an offence is still pending at the time when the prisoner would otherwise be eligible for release if remissions were granted, there is tension between the respective positions. From the point of view of the prisoner, if consideration of the granting of r_emissions is deferred he will have served more time in prison than he would otherwise have served if he is eventually acquitted of the charge. l) -- 9 of 12 -- 7 From the point of view of the Commission, where the hearing of a charge that may affect the decision of the Commission it is pending, especially one related to prison discipline, it would be difficult for the Commission to make a finding that the prisoner had been of good conduct and industry. It would be a capricious result if the extent of a prisoner's remission depended on whether the "best possible case'' eligibility date passed before a charge which might materially effect the situation was determined. As Derrington J. said in Armstrong v. Queensland Corrective Services Commission (unreported, No 899 of 1993, 16 December, 1993), it is impossible to come to a · \ conclusion to support a finding of good conduct and industry I \__ ) without knowing the truth as to the charge against the applicant. He said:....: "It would be artificial ... and wrong to conclude that the applicant has been of good conduct and industry without any decision on the issue as to whether or not he has been guilty of later . . . offences with which h.e is charged. Until the answer to that is known (the Commission) cannot come to a conclusion one way or the other. More particularly, (it) certainly cannot come to the conclusion that the applicant has been of 'good conduct and industry' so as to merit the remissions." On the other hand in some cases serious injustice might occur if there were lengthy delay in disposing of a matter despite best efforts to have the matter disposed of. In tlie present case the disposal of the charges of the indictable offences has been subject to lengthy delay. The applicant was, of course, entitled to contest the joinder of the ex officio count which has had a significant effect on the delay. The applicant has deposed that he wishes to defend the charge of being unlawfully at large. There is nothing in the material -- 10 of 12 -- 8 before me to suggest that that charge is connected in any way with the charges of indictable offences. There is no explanation as to why it is delayed except the inference that it may have been put off pending the disposal of the indictable offences. There is no evidence that he has made any attempt to accelerate the hearing of it. It is true also that he is not obliged to disclose his defence to the charge if he does not wish to do so. However the reality of the matter is that the view is open that the applicant has tried to force the Commission to make a decision on his remissions while charges which may have a material effect on his entitlement remain outstanding. The reality of the matter is also that a charge of unlawfully being at large would in the ordinary course of events be difficult to defend when an absence of over 12 months is involved. In the absence of any information being volunteered that would suggest that highly unusual circumstances existed, the Commission might well conclude that the defence was tenuous and the probability of conviction high. In those circumstances it would be justifiable on the part of the Commission to defer consideration of the question of remissions (c. f. Armstrong v. Queensland Corrective Services Commission). The more difficult question is whether, in all of the circumstances, it was permissible for the Commission to take into account the breach of conditions of the grant of leave of absence as if an unlawful absence had been proved in deciding to refuse remissions entirely. In my view it was not. As it was not appropriate for it to be taken into account the decision must be set aside and the matter remitted to the Commission for () C) C) () -- 11 of 12 -- r I ' I ) ) 9 further consideration. However this may well prove to be a pyrrhic victory for the reasons that appear above. It is also relevant to the question of costs when it is taken in conjunction with the fact.that the proceedings have become necessary because the decision complained of was made as a result of the insistence of the applicant that it was inappropriate to defer making a decision. I propose to make no order as to costs in the circumstances. The order is that the decision of the Commission made on 18 August, 1993 be set aside. The matter is remitted to the Commission to be dealt with according to law. I make no order as to costs. -- 12 of 12 --