The case concerns a challenge to the constitutional validity of sections 175L and 175E of the Corrective Services Act 2006 (Qld) (“CS Act”)
The challenge is based on the principle established in Kable v Director of Public Prosecutions (NSW), which prohibits the State Executive from impermissibly interfering with the exercise of judicial power by State Courts
The plaintiff, Rodney Michael Cherry, was convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 20 years
. The body of one victim was never located, making the plaintiff a “no body-no parole prisoner” and also a “restricted prisoner” under the CS Act
Section 175L allows the Queensland parole board to make a “no cooperation declaration” about a “no body-no parole prisoner” if the board is not satisfied the prisoner has given satisfactory cooperation regarding the location of the victim’s body or remains
If such a declaration is made, the prisoner may not apply for parole
Section 175E allows the president of the parole board to make a “restricted prisoner declaration” about a “restricted prisoner” (defined by conviction types)
This declaration can be made if the president is satisfied it is in the “public interest,” considering factors like the offence seriousness, risk to the public, and effect on victims. If this declaration is in force, the prisoner may not apply for parole under s 180, although they can still apply for “exceptional circumstances parole” under strict conditions
The plaintiff argued that ss 175L and 175E were invalid under the Kable principle because they permitted the executive to alter the punishment imposed by the sentencing judge, which he contended amounted to imposing additional punishment
He distinguished his case from prior decisions (Crump, Knight, Minogue) by arguing that ss 175L and 175E denied eligibility for parole altogether, effectively nullifying the non-parole period set by the judge. He also suggested the purpose of these provisions was punitive, citing Explanatory Notes and a Second Reading Speech
The High Court rejected the plaintiff’s challenge to s 175L
The Court held that the case was not materially different from the Crump, Knight, and Minogue decisions
Those cases established that changing the conditions for granting parole is valid and does not constitute an impermissible interference with judicial power
The sentencing judge’s fixing of a non-parole period is merely a “factum” upon which parole laws operate; it does not create a right to parole.
Legislative amendments to parole laws, even those imposing strict limitations or denying eligibility to apply, do not alter the original sentence (life imprisonment) or impose additional punishment
The Court found the distinction between limiting conditions for parole and denying eligibility to apply for parole to be “without a difference” in substance, as both confine the parole board’s power
The Court concluded that the purpose of s 175L is not punitive, but rather to encourage a prisoner to cooperate in locating a victim’s body or remains, which serves the public interest and provides comfort to families
This non-punitive purpose is evident from the language of the CS Act and confirmed by other passages in the relevant Explanatory Notes
The Court declined to answer the question regarding the validity of s 175E because no restricted prisoner declaration had been made concerning the plaintiff, making the question hypothetical
As s 175L was found to be valid, the question concerning the application of former s 193A was also not required to be answered
The Court ordered that the plaintiff pay the costs of the proceeding