R v Brutton

The Crown contended the defendant, who had breached his parole order by committing further offences, was liable to serve the remaining period of his original sentence in addition to any new sentence imposed. The defendant had not been at large in the community, rather he was immediately returned to custody and his parole suspended. The original sentence expired by the date of the new sentence imposed. Bowskill CJ held the proper construction of s 209 of the Corrective Services Act 2006 (“the CSA”) meant the defendant was not liable to serve any further period in respect of the original sentence as there was no “unexpired portion” remaining by the date of the new sentence. The CSA did not prevent the period of parole suspension being time served under the original sentence. Further, her Honour made observations regarding difficulties which may arise in other cases concerning the construction of s 211 of the CSA and s 160B of the Penalties and Sentences Act 1992.

Bowskill CJ

4 March 2024

Background

The defendant breached his parole order by committing further offences (“the further offences”), to which he pleaded guilty. [1]. At the sentence for those further offences, the Crown argued ss 209 and 211 of the Corrective Services Act 2006 (“the CSA”) meant the defendant was exposed to a “contingent liability” to serve a further period of time under the sentences previously imposed (“the original sentences”). [1].

The defendant had been arrested and returned to custody on the same day as he committed the further offences, namely 22 December 2022. [2]. The Parole Board suspended his parole the following day. [2]. On 4 April 2023, the defendant was granted bail for the further offences, but remained in custody serving the original sentences of imprisonment. [2]. Those sentences ended on 15 August 2023. [2]. On 29 February 2024, the defendant was sentenced for the further offences. [2].

The Crown argued the CSA imposed a “contingent liability” of around eight months from the date the defendant’s parole was suspended to the full-time release date of the original sentences.

Effect of parole “suspension period” on imprisonment to be served

Chief Justice Bowskill held the proper construction of the CSA did not impose the “contingent liability” contended for by the Crown. Upon reviewing the provisions of the CSA, her Honour distinguished between cases where (a) a person’s parole is suspended and they are returned to custody under suspension, and (b) where a person’s parole is suspended but they remain unlawfully at large in the community for a period of time. [31].

Any period the prisoner served on parole in the community, prior to breaching parole, will be counted as time served under the sentence. [21].

However, a prisoner who remains in the community after their parole order has been suspended or cancelled is “unlawfully at large”. [11]. Pursuant to s 112(4) of the CSA, such a period of being unlawfully at large is not counted as part of the prisoner’s period of imprisonment. [11], [22]. Precisely how that is dealt with when sentencing the prisoner for the further offences depends on a number of variables, including whether the parole order was Board or Court ordered (due to a distinction in s 160B(2) of the Penalties and Sentences Act), whether there is a break between the original and subsequent terms of imprisonment, if the Board suspends the parole order, the length of imprisonment terms imposed for the further offending, and how the sentencing court exercises its discretion as to “any remission of that term” (e.g. by fixing parole release or eligibility dates, or partially suspending the sentence). [31].

Meanwhile, her Honour found the same could not be said for a “suspension period” in custody. The CSA does not define “suspension period”. [13]. The CSA also does not express that the period while a person is in custody “for a suspension period” does not count as part of their period of imprisonment. [13]. Her Honour considered “[t]hat would be fundamentally unjust in any event”. [13].

In the present case, the defendant was arrested and remanded on the same day as being charged with the further offences. [14]. No warrant was issued; he spent no time unlawfully at large. [14]. The period the defendant spent in prison under suspension of the parole order was equal to the unexpired portion of the previously imposed sentences. [14]. Consequently, there was no “unexpired portion” of the original sentences. [25]. R v Pashen [2022] QCA 111 is analogous and, while the Court of Appeal did not directly comment on this point, reasoned consistently with this approach. [25].

Chief Justice Bowskill also considered the effect of an automatic parole cancellation under s 209 of the CSA. Section 209 automatically cancels a parole order where a prisoner is sentenced to another period of imprisonment for offences committed while on parole. [15]. The parole order is taken to have been automatically cancelled from the date on which the further offences occurred. [15]. If automatically cancelled, the prisoner must serve the unexpired portion of the original period of imprisonment in custody; that occurred in this case while the defendant was serving the “suspension period”. [17].

Observations regarding problematic effect of other provisions

Her Honour found s 211(3) of the CSA, concerning the Parole Board’s power to order a prisoner to serve any unexpired portion of the original period of imprisonment, did not apply in the present case as the “unexpired portion” had been served by the date of the new sentence. [32].

Chief Justice Bowskill nevertheless observed an ongoing dilemma with the wording of s 211 that may arise in other cases. [37]. Her Honour described the provision as “unsatisfactory”, “confusing and unclear”. [37]. The difficulty arises from s 211(3) being limited to s 206(3)(b) – where the Board has exercised its power to cancel the order – and does not expressly include circumstances of automatic cancellation under ss 209 and 210(3). [33]–[37]. The explanatory memorandum does not clarify the legislative intent, though does appear to assume s 211 would apply regardless of whether the cancellation was Board ordered or automatic. [35].

H Edwards of Counsel