Andrews v Parole Board of South Australia
[2008] SASC 237
•29 August 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
ANDREWS v PAROLE BOARD OF SOUTH AUSTRALIA
[2008] SASC 237
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice David)
29 August 2008
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
CRIMINAL LAW - ADMINISTRATION OF PRISONS - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA
Application for judicial review - plaintiff convicted of murder and sentenced to life imprisonment by Cox J on 19 November 1991 - non-parole period of 23 years fixed - at the time of plaintiff's sentencing, prisoners serving a term of life imprisonment were entitled to remissions and automatic release on parole at the expiry of their non-parole period - Statutes Amendment (Truth in Sentencing) Act 1994 (SA) abolished remissions and automatic release on parole - transitional provision credited prisoners sentenced before commencement of Statutes Amendment (Truth in Sentencing) Act 1994 (SA) with maximum amount of remissions they could have earned throughout remainder of their sentence set by the court - plaintiff's non-parole period was reduced to 14 years, 11 months and 20 days - plaintiff completed serving reduced non-parole period on 13 February 2006 - plaintiff's applications to Parole Board of South Australia dated 22 June 2006, 11 September 2007 and 17 June 2008 were refused - whether Parole Board of South Australia's decisions to refuse the applications were based on an error of law - whether Statutes Amendment (Truth in Sentencing) Act 1994 (SA) retrospectively alters penalty or right granted to the plaintiff at the time of sentencing - whether presumption against retrospective operation applies - whether Correctional Services (Application of Truth in Sentencing) Amendment Act 2008 (SA) applies.
Held: Statutes Amendment (Truth in Sentencing) Act 1994 (SA) operates prospectively as per Parliament's intention - Parole Board of South Australia's decisions are governed by Statutes Amendment (Truth in Sentencing) Act 1994 (SA) and Correctional Services (Application of Truth in Sentencing) Amendment Act 2008 (SA) - application dismissed.
Acts Interpretation Act 1915 (SA) s 16; Correctional Services Act 1982 (SA) s 66, s 67, s 68, Sch 1; Correctional Services Act Amendment Act 1984 (SA) s 39; Statutes Amendment (Truth in Sentencing) Act 1994 (SA) s 11, s 20; Statutes Amendment (Correctional Services) Act 1995 (SA) s 4; Correctional Services (Parole) Amendment Act 2005 (SA) Sch 1 s 1(2), s 12; Correctional Services Act (Application of Truth in Sentencing) Amendment Act 2008 (SA) s 3, referred to.
Summers v Nelson (Unreported, Supreme Court of South Australia, Lander J, 23 December 1994), applied.
Maxwell v Murphy (1957) 96 CLR 261; Pight v The Queen (1995) 64 SASR 215, considered.
ANDREWS v PAROLE BOARD OF SOUTH AUSTRALIA
[2008] SASC 237Full Court: Duggan, Anderson and David JJ
DUGGAN J. The relevant facts and legislation in this matter are set out in the reasons prepared by David J.
I agree with the view expressed by David J that the amendments enacted in the Statutes Amendment (Truth in Sentencing) Act 1994 (“the Truth in Sentencing Act”) apply to the plaintiff and that the effect of those amendments was to alter the procedure and circumstances relevant to his release on parole.
In my view this has always been the effect of the proper construction of the Truth in Sentencing Act.
However, in case there may have been some doubt about the matter, Parliament has now enacted the Correctional Services (Application of Truth in Sentencing) Amendment Act 2008 (“the 2008 Amending Act”).
The intention of Parliament emerges clearly from clause 2(1) of Schedule 1 enacted by the 2008 Amending Act which states that the amendments made by the Truth in Sentencing Act apply, and have always applied, to all prisoners serving sentences of imprisonment immediately before the commencement of those amendments. The clause provides that this is so regardless of when the prisoners were sentenced.
However, Mr Hayes QC, for the plaintiff, submitted that irrespective of the intention of the 2008 Amending Act, it is inapplicable to the circumstances of the plaintiff’s application. Mr Hayes relies on clause 2(3) which provides:
This clause affects rights and liabilities arising between parties to proceedings initiated before the commencement of this clause to the extent to which those rights and liabilities arise from, or are affected by, an act or omission referred to in subclause (2); however, this clause does not affect any such rights or liabilities arising between parties to proceedings heard and finally determined before the commencement of this clause. (emphasis added)
Mr Hayes argued that the “right” of the plaintiff to be released at a particular time was finally determined by the judge who sentenced the plaintiff and that it was preserved by clause 2(3).
I would reject this analysis. The consequences of fixing the non-parole period, including the time at which the plaintiff was to be released, were not matters determined by the sentencing judge: they are determined by the provisions of the Correctional Services Act 1982 as amended from time to time.
Furthermore, I agree with the view expressed by Lander J in Summers v Nelson & Ors (unreported, Supreme Court of South Australia 23 December 1994) that the provisions in the Correctional Services Act 1982 relating to release on parole are not properly characterised as rights or liabilities, but rather expectations.
It follows that the hearing at which the plaintiff was sentenced and the orders made thereat do not come within clause 2(3) of Schedule 1 of the Correctional Services Act 1982.
As previously stated, the clear intention of Parliament in passing the 2008 Amending Act was to put beyond any doubt that the Truth in Sentencing Act applied to the plaintiff and all other persons sentenced before that Act came into operation and who were still serving sentences at the time of the passing of the Act. An acceptance of the plaintiff’s argument would defeat the primary purpose of the amendments made by the 2008 Amending Act as reflected in clauses 2(1) and 2(2) of Schedule 1.
I would dismiss the application for judicial review.
ANDERSON J. In my view the application for judicial review should be dismissed. I agree with the reasons prepared by David J and with the additional reasons prepared by Duggan J.
DAVID J.
Introduction
This is an application for judicial review of the decisions of the Parole Board of South Australia to refuse to grant the plaintiff’s three applications for parole.
On 19 November 1991 the plaintiff was convicted of murder and was sentenced to imprisonment for life. On sentencing the plaintiff, Cox J fixed a non‑parole period of 23 years, which was deemed to have commenced on 25 February 1991, being the date the plaintiff was initially arrested for the offence. Section 66 of the Correctional Services Act 1982 (SA) as amended by s 39 of the Correctional Services Act Amendment Act 1984 (SA) (“the Automatic Parole Act”) was in operation at the time of his sentencing. Pursuant to that section, the plaintiff had the right to remissions and to be automatically released on parole, subject to conditions, at the expiration of the non‑parole period set by the Court.
On 1 August 1994, the Correctional Services Act 1982 (SA) was amended by the Statutes Amendment (Truth in Sentencing) Act 1994 (SA) (“the Truth in Sentencing Act”). The effect of the amendment was to abolish a prisoner’s right (if serving a sentence of over five years) to be released automatically, upon conditions, at the expiry of his or her non‑parole period. It also abolished remissions. It meant that at the expiration of the non‑parole period, an application could be made for parole, but whether it was successful would depend upon the discretion of the Parole Board. Section 20 of the Truth in Sentencing Act preserved the remissions a prisoner had already accumulated during the period from his or her sentencing to the date the Truth in Sentencing Act came into operation. Indeed, it conferred the further benefit of reducing the length of those prisoners’ non‑parole periods in anticipation of the total number of remissions they could have earned throughout the remainder of their sentence.
There is no dispute that on the recalculation implementing s 20 of the Truth in Sentencing Act, the plaintiff’s non‑parole period was reduced to be 14 years 11 months and 20 days. It is also agreed that he completed serving that recalculated period on 13 February 2006. On 22 June 2006, 11 September 2007 and 17 June 2008 he applied for parole, but his applications were each refused by the Parole Board.
The plaintiff now argues that the Parole Board’s refusals were based upon an error of law, in that the Truth in Sentencing Act could not apply to him because if it did, it would retrospectively alter either a penalty or a right which had applied to him under the Automatic Parole Act when he was sentenced. In other words, the Truth in Sentencing Act’s abolition of automatic parole should not apply to sentences set when the Automatic Parole Act was still in force.
History of the Relevant Legislation
Pursuant to ss 66 to 68 of the Correctional Services Act 1982 (SA) as originally enacted (“the Original Act”), prisoners serving life sentences were entitled to apply to the Parole Board for release on parole. After having regard to a number of matters in determining the prisoner’s application, the Parole Board could recommend the prisoner’s release on parole to the Governor, who upon such a recommendation could release the prisoner on parole for a period of not less than three years and not more than ten years. Release was not automatic.
Those sections of the Original Act were repealed and substituted by the Automatic Parole Act in 1984. A new s 66 provided for the automatic release on parole of all prisoners. I set out that section:[1]
[1] Correctional Services Act Amendment Act 1984 (SA) s 39, amending Correctional Services Act 1982 (SA).
66.(1) The Board shall order that a prisoner in respect of whom a parole period has been fixed be released from prison on parole on a day specified by the Board, being a day not later than thirty days after the day when the period the prisoner has served in prison during the non-parole period and the total number of days of remission credited to him during that period (after the commencement of the Prisons Act Amendment Act (No 2), 1983) together equal the non-parole period.
(2) The release of a prisoner on parole—
(a)shall be subject to the conditions—
(i)that the prisoner shall not commit any offence;
and
(ii)that the prisoner shall be under the supervision of a parole officer and shall obey the reasonable directions of the parole officer, until the expiration of the period of his parole;
and
(b)may be subject to any other condition fixed by the Board or, in the case of a prisoner serving a sentence of life imprisonment, recommended by the Board and approved by the Governor, to be effective until the expiration of the period of his parole, or for such lesser period as may be specified in the order.
(3) Where a prisoner who is serving a sentence of life imprisonment is to be released on parole, the Board—
(a)shall recommend to the Governor the period, being a period of not less than three years nor more than ten, for which the prisoner should continue on parole;
and
(b)shall forward a copy of its recommendations as to the period of parole and conditions to which the release on parole is to be subject to the Governor for approval.
(4) In fixing or recommending conditions to which the release on parole prisoner will be subject, the Board shall have regard to the following matters:
(a)the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment;
(b)the behaviour of the prisoner while in prison;
(c)the behaviour of the prisoner during any previous period of release on parole;
(d)any reports tendered to the Board on the health, behaviour or psychological condition of the prisoner, or on any other matter relating to him;
(e)the probable circumstances of the prisoner after his release from prison;
and
(f)any other matters that the Board considers relevant.
(5) A prisoner shall not be released pursuant to this section until—
(a)the conditions to which his release on parole will be subject to have been fixed or recommended by the Board and, if the case so requires, approved by the Governor, pursuant to this section;
and
(b)the prisoner has accepted those conditions in writing.
(6) Where a prisoner refuses or fails to accept the conditions to which his release on parole is to be subject, the Board shall review the circumstances of the prisoner at intervals fixed by the Board, being not less than three months nor more than one year.
(7) If, after carrying out a review pursuant to subsection (6), the Board is of the opinion that the prisoner will accept the conditions to which his release on parole is to be subject, the Board may order the release of the prisoner from prison on parole in accordance with this Act upon the written acceptance by the prisoner of those conditions.
That section was once again repealed in 1994 by the Truth in Sentencing Act and new sections were substituted. I set them out:[2]
[2] Statutes Amendment (Truth in Sentencing) Act 1994 (SA) s 11 amending Correctional Services Act 1982 (SA) ss 66-68.
…
Release on parole—prisoners imprisoned for less than five years
66.The Board must order that a prisoner who is liable to serve a total period of imprisonment of less than five years and for whom a non-parole period has been fixed be released from prison or home detention on parole on the day specified by the Board, being a day—
(a) where, because the commencement of the non-parole period has been backdated, the non-parole period expires prior to the date on which it is fixed, not later than 30 days after the day on which it is fixed; or
(b) in any other case, not later than 30 days after the day on which the non‑parole period expires.
Release on parole—prisoners imprisoned for five years or more
67.(1) Where a prisoner is serving a sentence of life imprisonment or is liable to serve a total period of imprisonment of five years or more and a non-parole period has been fixed in respect of the sentence or sentences—
(a)the prisoner; or
(b)the Chief Executive Officer, or any employee of the Department authorised by the Chief Executive Officer,
may apply in the prescribed manner to the Board for the prisoner's release on parole.
(2) This section does not apply to a person who is serving a sentence of indeterminate duration.
(3) An application cannot be made under subsection (1) more than six months before the expiration of the non-parole period fixed in respect of the prisoner's sentence.
(4) In determining an application under this section for the release of a prisoner on parole, the Board must have regard to the following matters:
(a)any relevant remarks made by the court in passing sentence; and
(b)the likelihood of the prisoner complying with the conditions of parole; and
(c)where the prisoner was imprisoned for an offence or offences involving violence, the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment but only insofar as it may assist the Board to determine how the prisoner is likely to behave should the prisoner be released on parole; and
(d)the behaviour of the prisoner while in prison or on home detention; and
(e)the behaviour of the prisoner during any previous release on parole; and
(f)any reports tendered to the Board on the social background, the medical, psychological or psychiatric condition of the prisoner, or any other matter relating to the prisoner; and
(g)the probable circumstances of the prisoner after release from prison or home detention; and
(h)any other matters that the Board thinks are relevant.
(5) The Board may, on an application under this section, order that a prisoner (not being a prisoner who is serving a sentence of life imprisonment) be released from prison on parole on a day specified in the order.
(6) The Board may, on an application under this section in respect of a prisoner who is serving a sentence of life imprisonment, recommend to the Governor that the prisoner be released from prison on parole and, if the Board so recommends, the Board—
(a)must recommend to the Governor—
(i)a day on which the prisoner is to be released on parole; and
(ii)a period of not less than three years or more than 10 years, for which the prisoner should continue on parole; and
(b)must forward a copy of its recommendations to the Governor for approval.
(7) The Governor may, on receiving the Board’s recommendations, order that the prisoner be released from prison on parole on a day and for a period specified in the order, being not less than three years and not more than ten years.
(8) The Board or the Governor cannot specify a release date under this section that is earlier than the day on which the prisoner's non-parole period expires.
(9) The Board must, not more than 30 days after refusing an application by a prisoner for release on parole, notify the prison in writing of—
(a)its refusal; and
(b)the reasons for its refusal and of any matters that might assist the prisoner in making any further application for parole; and
(c)a date, not less than six months or more than one year after the date on which the Board refuses the application, before which the Board will not accept any further application by the prisoner for release on parole.
(10) The Board is not obliged to (but may, if in its opinion good reason exists for doing so) accept a further application by a prisoner for release on parole before the date notified by the Board under subsection (9).
Conditions of release on parole
68.(1) The release of a prisoner on parole—
(a)must be subject to the conditions—
(i)that the prisoner not commit any offence; and
(ii)that the prisoner not possess an offensive weapon unless the prisoner has first obtained the permission of the Board to do so and complies with the terms and conditions of that permission; and
(iii)that the prisoner—
(A)be under supervision of a parole officer; and
(B)obey reasonable directions of the parole officer,
until the expiration of the period of parole or such earlier date as is specified by the Board; and
(b)may be subject to any other condition fixed by the Board or, in the case of a prisoner serving a sentence of life imprisonment, recommended by the Board and approved by the Governor, to be effective until the expiration of the period of parole, or for such lesser period as may be specified in the order.
(2) In fixing or recommending conditions to which the release of a prisoner on parole will be subject, the Board must have regard to the following matters:
(a)any remarks made by the court in passing sentence; and
(b)the likelihood of the prisoner complying with the conditions; and
(c)the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment; and
(d)the behaviour of the prisoner while in prison or on home detention; and
(e)the behaviour of the prisoner during any previous release on parole; and
(f)any reports tendered to the Board on the social background, the medical, psychological or psychiatric condition of the prisoner, or any other matter relating to the prisoner; and
(g)the probable circumstances of the prisoner after release from prison or home detention; and
(h)any other matters that the Board thinks are relevant.
(3) In fixing or recommending conditions to which the release on parole of a prisoner will be subject, the Board may designate any condition as a condition that, if breached, will result in automatic cancellation of parole.
(4) A prisoner must not be released pursuant to this Division until the conditions of the prisoner’s release on parole have been fixed by the Board or, if the case so requires, recommended by the Board and approved by the Governor.
It is also important to set out the following transitional provision:[3]
[3] Statutes Amendment (Truth in Sentencing) Act 1994 (SA) s 20 amending Correctional Services Act 1982 (SA) Legislative History. This was later amended by Statutes Amendment (Correctional Services) Act 1995 (SA) s 4, as discussed by this Court in Owen v South Australia (1996) 66 SASR 251.
Reduction of existing sentences and non-parole periods
20.A sentence of imprisonment (including a suspended sentence) imposed before the commencement of this Act and a non‑parole period imposed before the commencement of this Act are, on the commencement of this Act, reduced—
(a) by the number of days of remission credited to the prisoner or youth; and
(b) by the maximum number of days of remission that the prisoner or youth could have earned after the commencement of this Act, had this Act not repealed Part VII of the Correctional Services Act 1982 (SA).
The Correctional Services (Parole) Amendment Act 2005 (SA) (“the Parole Applications Act”) came into operation in 2005. It provided that in determining an application for release on parole, the Parole Board must consider the gravity or circumstances of the offence as expressed by the sentencing court, the impact the prisoner’s release on parole is likely to have on any registered victim and his or her family and the safety of the community. Schedule 1 to the Parole Applications Act set out the following transitional provision:[4]
…
(2)The amendments made by Part 2 of this Act to Part 6 Division 3 of the principal Act are intended to apply in respect of prisoners serving sentences of imprisonment immediately before the commencement of this Schedule regardless of when they were sentenced.
…
[4] Correctional Services Act 1982 (SA) Legislative History, amended by Correctional Services (Parole) Amendment Act 2005 (SA) Sch 1 s 1(2).
Arguments on Appeal
The plaintiff now argues that the Parole Board should have determined his applications according to the Automatic Parole Act, and that the Truth in Sentencing Act was not applicable. In doing so he relies upon s 16(1)(d) of the Acts Interpretation Act 1915 (SA) which provides the following:
16.Saving of operation of repealed, amended or expired Act
(1) Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not—
…
(d)affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, prior to the repeal, amendment or expiry; or
…
The plaintiff also relies upon the authority of Maxwell v Murphy[5] where Dixon CJ said:[6]
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that had already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.
Put simply, the plaintiff argues that under the Automatic Parole Act he received a penalty, namely, life imprisonment with a non-parole period, which effectively meant that after serving a specific period of time he had to be released. He therefore argues that the Truth in Sentencing Act should not affect that penalty.
[5] Maxwell v Murphy (1957) 96 CLR 261.
[6] Ibid 267.
The defendant argues that the Truth in Sentencing Act is plainly intended to apply equally to all prisoners, whether sentenced before or after its commencement, and is, therefore, only meant to operate prospectively. In so arguing, the defendant cites the decision of Summers v Nelson,[7] in which Lander J held that the Truth in Sentencing Act was intended to apply equally to all prisoners, whether sentenced before or after its commencement. The defendant further argues that even if that were not so, the Truth in Sentencing Act clearly shows an intention to displace the presumption against retrospective operation.
[7] Summers v Nelson (Unreported, Supreme Court of South Australia, Lander J, 23 December 1994).
The Crown Solicitor put a number of arguments on behalf of the defendant as to the prospective operation intended by Parliament. First, that the wording of the Truth in Sentencing Act is clearly meant to apply to prisoners serving a particular term of imprisonment of more than five years, irrespective of when they were sentenced. He points out the fact that s 67 of the Truth in Sentencing Act refers to a situation where a prisoner “is” serving a sentence in the present tense and does not refer to past events, establishes that it is meant to apply to all prisoners, and is meant to have a prospective operation and none other.
Secondly, that pursuant to the Truth in Sentencing Act and other later amendments, Parliament intended the following criteria to be taken into account by the Parole Board in relation to all prisoners about to be released:[8]
[8] Correctional Services Act 1982 (SA) s 67(4)(d)‑(h), amended by Statutes Amendment (Truth in Sentencing) Act 1994 (SA), s 11 and Correctional Services (Parole) Amendment Act 2005 (SA) s 12.
…
(d)the behaviour of the prisoner while in prison or on home detention; and
(e)the behaviour of the prisoner during any previous release on parole; and
(f)any reports tendered to the Board‑
(i) on the social background, or the medical, psychological or psychiatric condition, of the prisoner;
(ii) from community corrections officers or other officers or employees of the Department; and
(g)the probable circumstances of the prisoner after release from prison or home detention; and
(h)any other matters that the Board thinks are relevant.
These criteria do not differentiate between prisoners who were sentenced before the Truth in Sentencing Act came into operation and those sentenced afterwards.
Thirdly, that if the Truth in Sentencing Act was not meant to apply to prisoners sentenced before it came into operation, there would be a gap of five years between when the Truth in Sentencing Act came into operation and when it could be first applied. This is by virtue of s 67(1) as amended by the Truth in Sentencing Act, which stipulates that a prisoner can only apply for release on parole where he or she is serving a sentence of life imprisonment or a sentence of imprisonment totalling a period of five years or more.
If there were any residual doubt about the matter, the defendant argues it is clearly resolved by the second reading speech in support of the Truth in Sentencing Act, where the Honourable W A Matthews, Minister for Correctional Services said:[9]
[9] South Australia, Hansard, House of Assembly, 21 April 1994, 922 (W A Matthews, Minister for Correctional Services).
…
This Bill will restore truth in sentencing.
Remissions are abolished and the non‑parole period fixed by the court will be the minimum period which must be served before the prisoner is released on parole. All prisoners will no longer be automatically released by the Parole Board at the end of their non-parole period. Prisoners serving a sentence of less than five years will continue to be automatically released by the Parole Board at the end of their non‑parole period but prisoners serving a sentence of five years or more will have to apply to the Parole Board for release at the expiration of their non‑parole period.
Prisoners applying for parole will be required to demonstrate good behaviour, including abstention from drugs and alcohol, and productive participation in work, trade training, education and, where appropriate, anti-violence programs.
Further, the police will be able to make submissions to the Parole Board on a prisoner’s application for parole, and victims of crimes of violence will also be given the opportunity to make submissions to the Parole Board.
Remissions cannot simply be abolished - the consequences of their abolition need to be dealt with.
…
It will be noted that the amendments abolish remissions as from the date the amendments come into operation. However, provision is made to ensure that prisoners who were sentenced on the basis that they are eligible for remissions are not penalised. The transitional provisions provide that the abolition of remissions does not affect any days of remission already credited to the prisoner and all prisoners who are eligible for remissions will be taken to have their term of imprisonment and non‑parole period (if any) reduced by the maximum number of days of remission they could have earned had remissions not been abolished.
The Government believes that it would be undesirable for there to be two groups of prisoners, pre‑amendment prisoners who continue to be eligible for remissions and post‑amendment prisoners not being eligible for remissions. Such a situation would be confusing for both prisoners and prison officers. Prisoners eligible for remissions could be penalised by the loss of remissions, whereas other prisoners would have to be dealt with under the new provisions. Prison officers, when dealing with an incident would have to determine under which system a prisoner should be dealt with.
The retention of the two systems would be particularly confusing if a prisoner was serving a sentence under both the old system and the new system.
There would be administrative costs involved in maintaining a dual system, not only in the costs of setting up and maintaining two systems but also in added prison staff workloads in clarifying prisoners’ concerns and Parole Board staff workloads in clarifying the status of prisoners.
A dual system would have to be maintained until the prisoner with the longest remaining non‑parole period is discharged on parole. This will be twenty one years.
In my view, the Truth in Sentencing Act is clearly meant to be prospective. It is clearly meant to meet current and future events in the manner in which the Parole Board functions. There was never any intention by Parliament to have a two‑tier system, whereby prisoners sentenced before the Truth in Sentencing Act came into operation were under a radically different regime than those sentenced afterwards. In my view, the decision of Lander J in Summers v Nelson[10] is correct.
[10] Summers v Nelson (Unreported, Supreme Court of South Australia, Lander J, 23 December 1994).
Both parties agree that when the plaintiff was sentenced to a non‑parole period of 23 years, it was not permissible for a sentencing court to increase the non‑parole period because of the fact that at that time prisoners were released automatically. In Pight v The Queen[11] Cox J held:[12]
In my opinion, the method of the sentencing court in fixing a non-parole period is no different now from its method before the Truth in Sentencing Act came into operation.
In other words, no different sentence was imposed upon the plaintiff than would now be imposed, although release is no longer automatic.
[11] Pight v The Queen (1995) 64 SASR 215.
[12] Ibid 218.
Transitional provisions in the Truth in Sentencing Act protected the remissions that a prisoner sentenced before it came into operation had accumulated, and also gave the additional benefit that further remissions (the maximum that could have been earned) were to be calculated in his or her favour. The fact that Parliament turned its mind to, and preserved those aspects of the Automatic Parole Act, is a further indication that it did not intend to preserve any right of automatic release for those sentenced when the Automatic Parole Act was still in operation.
Recent Legislative Amendment
After the hearing of this appeal, but before this judgment was delivered, Parliament passed the Correctional Services (Application of Truth in Sentencing) Amendment Act 2008 (SA) (“the 2008 Amending Act”). It provides the following:[13]
[13] Correctional Services (Application of Truth in Sentencing) Amendment Act 2008 (SA).
3—Insertion of Schedule 1
After section 89 insert:
Schedule 1—Application of Truth in Sentencing Act amendments
1—Interpretation
In this Schedule—
subsequent amending Act means an Act (other than the Correctional Services (Application of Truth in Sentencing) Amendment Act 2008) brought into operation after the commencement of the Truth in Sentencing Act that amends or substitutes a provision of this Act;
Truth in Sentencing Act means the Statutes Amendment (Truth in Sentencing) Act 1994.
2—Truth in sentencing clarification
(1) The amendments to this Act made by the Truth in Sentencing Act apply, and have always applied, in respect of all prisoners serving sentences of imprisonment immediately before the commencement of those amendments, regardless of when the prisoners were sentenced.
(2) It follows that anything done or omitted to have been done in relation to such prisoners before the commencement of this clause on the basis referred to in subclause (1) has been, and has always been, validly done or omitted to have been done.
(3) This clause affects rights and liabilities arising between parties to proceedings initiated before the commencement of this clause to the extent to which those rights and liabilities arise from, or are affected by, an act or omission referred to in subclause (2); however, this clause does not affect any such rights or liabilities arising between parties to proceedings heard and finally determined before the commencement of this clause.
(4) Nothing in this clause affects the operation of a subsequent amending Act (and any such Act has effect according to its terms).
The Court allowed counsel to make further submissions in relation to the 2008 Amending Act. Mr Wait, who made submissions on behalf of the defendant on this specific matter, argues that the 2008 Amending Act was enacted for the purpose of making it absolutely clear that the Truth in Sentencing Act was meant to apply to sentences imposed before it came into operation. He points in particular to the wording of cl 2(1) of Sch 1 inserted by the 2008 Amending Act.
Mr Hayes QC, who argues the specific point for the plaintiff, submits that the wording of cl 2, especially cl 2(3), suggests that it does not apply in the present situation. He argues that when looking at cl 2(3), the words “this clause does not affect any such rights or liabilities arising between parties to proceedings heard and finally determined before the commencement of this clause” only applies to those proceedings which culminated in his sentence. As I understand his argument, it is because those proceedings were the ones in which the rights and liabilities now in issue arose. He argues that for whatever other reason the 2008 Amending Act might be used, it could not apply in this case.
Mr Wait submits that reference in cl 2(3) applies to the proceedings the subject of this application, and it was the intention of Parliament that if these proceedings had been concluded before the amendment was enacted, then the amendment would not apply. He argues that although certain rights and liabilities were finalised and determined at the date of sentencing, nevertheless, there are rights and liabilities that have arisen in the context of the present application and which have been caught by the 2008 Amending Act.
In my view, the defendant’s submission is clearly correct, and if the argument of the plaintiff was to be accepted on this point, it would be completely inconsistent with cl 2(1) of Sch 1 inserted by the 2008 Amending Act, which makes clear what Parliament always intended by enacting the Truth in Sentencing Act in 1994.
As the plaintiff is serving a sentence exceeding five years, pursuant to the Correctional Services Act 1982 (SA), he does not have the right to automatic release. I am of the view, therefore, that the Parole Board had, and still has, the discretion to refuse the plaintiff’s applications for release on parole.
I would dismiss the application.
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