Notorious bank robber and fugitive Brenden James Abbott is seeking to have his detention declared unlawful and is also suing the Western Australian government for wrongful imprisonment.
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Forbes Kirby Lawyers, who act for the career criminal known as 'the Postcard Bandit', filed judicial review proceedings on Tuesday in the WA Supreme Court, seeking to invalidate Abbott's prison sentence.
Abbott, 62, who escaped from Fremantle Prison in 1989, claims that sentencing laws introduced in November 1996 do not apply to him and that his WA custodial sentence lapsed while he was in custody in Queensland.
Abbott is also seeking to challenge the constitutional validity of the laws, which require an inmate returned to prison after an escape to serve an additional period of imprisonment equal to one-third of the time they were at large, on top of the time they had yet to serve when escaping.
He claims the imposition of a sentence without the intervention of a court "offends" the strict separation of the judiciary and legislative arms of government at federal level.
His lawyers say that the case may ultimately need to be determined by the High Court.
Counsel for Abbott, Matthew Crowley, said the real question was "not whether we like Mr Abbott or not".
"Views will differ about that, just like they did about Ned Kelly 150 years ago," he said.
"The real question is the constitutional power the state has to keep people in prison after their sentences end - without trial, verdict, or sentence - even if they don't like them."
Mr Crowley said that if Abbott's action was successful, it would mean that he had been falsely imprisoned in WA since as early as May 2016.
Abbott is a maximum security inmate at Perth's Casuarina Prison, where he is serving a 14-year sentence for bank robbery, a prison riot and escaping from Fremantle Prison in 1989.
He was extradited to Perth in May 2016 after serving 18 years in Brisbane prisons, following his recapture in Darwin in May 1998.
He had escaped from Sir David Longland Prison in Brisbane in November 1997, where he was serving a sentence for bank robberies on the Gold Coast.
Abbott had been arrested on the Gold Coast in March 1995, five-and-a-half years after he escaped from Fremantle Prison and embarked on a covert life as a fugitive, suspected of robbing banks in WA, SA and Queensland of up to $5 million.
Abbott is technically eligible for parole in WA in October 2026. But as a prisoner who has served more than 25 years, but is not subject to a life sentence, his situation is unique.
There is a genuine prospect Abbott will never be granted parole and won't be released until his maximum term expires in January 2033, which would be 34 years and eight months after his recapture in Darwin.
Abbott remains subject to a High Security Escort classification, meaning that if he is required to leave prison for reasons such as a court appearance or medical attention, he would be subject to stringent security measures.
Prisoners with such a classification are automatically detained in maximum security, which means they are ineligible to be considered for transfer to a self-care unit, or to participate in the prison's resocialisation program.
This program is generally reserved for inmates serving life sentences.
The WA Corrective Services Department's protocol states that resocialisation programs for inmates serving fixed-term sentences are "often discouraged, as generally they are eligible to apply for release-planning activities as a sentenced prisoner, if and when they achieve a minimum security status and placement".
But Abbott cannot achieve a minimum security status because of his classification and prison authorities insist he remains an escape risk, despite there being no escape attempts since his 1998 recapture.
In 2017, he was sentenced to a concurrent five-year jail term for the 1989 Fremantle Prison escape.
Australian Associated Press
