Evans v Job
[2018] TASFC 3
•6 August 2018
[2018] TASFC 3
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Evans v Job [2018] TASFC 3 |
| PARTIES: | EVANS, Nicholas Stephen |
| v | |
| JOB, Katie Maree | |
| FILE NO: | 3573/2017 |
| DELIVERED ON: | 6 August 2018 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 5 March 2018 |
| JUDGMENT OF: | Estcourt, Pearce and Brett JJ |
| CATCHWORDS: |
Criminal Law – Sentence – Post-custodial orders – Remissions – Other States and Territories – Tasmania –
Meaning of Corrections Regulations 2008, reg 22 – "Total period of imprisonment" – Whether
Director's power to grant a remission attaches to each separate sentence or to the whole period of imprisonment.
Corrections Act 1997 (Tas), ss 86, 90.
Corrections Regulations 2008 (Tas), reg 22.
R v Director of Corrective Services; ex-parte Starling [2015] TASSC 24, overruled.
Aust Dig Criminal Law [3432]
Procedure – Miscellaneous procedural matters – Declarations – Jurisdiction – Principles applicable to the granting of declaratory relief – Exercise of discretion – Whether real dispute between parties –
Declaratory relief granted.
Motor Accidents Insurance Board v Watt [2016] TASSC 45, considered.
Aust Dig Procedure [1773]
REPRESENTATION:
Counsel:
Applicant: J Rudolph, D Elankovan Respondent: G Stevens
Solicitors:
Applicant: Office of the Solicitor-General Respondent: Blissenden Lawyers
| Judgment Number: | [2018] TASFC 3 |
| Number of paragraphs: | 63 |
Serial No 3/2018
File No 3573/2017
NICHOLAS STEPHEN EVANS in his capacity as
THE DIRECTOR OF CORRECTIVE SERVICES v KATIE MAREE JOB
| REASONS FOR JUDGMENT | FULL COURT ESTCOURT J (Dissenting) PEARCE J BRETT J 2018 |
| Orders of the Court |
Appeal allowed.
It is declared that in respect of each sentence imposed upon the respondent by the Chief Magistrate on 16 August 2017, the Director may grant a maximum remission as follows:
(a)
in respect of the sentence of 10 months' imprisonment imposed in relation to complaints numbered 6950/2016, 8064/2016, 8729/2016, 9845/2016, 11204/2016, 11205/2016 and 11209/2016, a maximum remission of three months;
(b)
in respect of the cumulative sentence of six months' imprisonment imposed in respect of complaint 7089/2017, a maximum remission of two months.
Serial No 3/2018
File No 3573/2017
NICHOLAS STEPHEN EVANS in his capacity as
THE DIRECTOR OF CORRECTIVE SERVICES v KATIE MAREE JOB
| REASONS FOR JUDGMENT | FULL COURT ESTCOURT J |
2018
The background
1 The applicant, by originating application, seeks declaratory relief to determine the following question of construction posed in the application:
"Upon the proper construction of the Corrections Act 1997, s 86 and the Corrections Regulations 2008, reg 22, what is the maximum period of any remission(s) of sentence(s) which may be given by the Applicant in respect to the sentence(s) of imprisonment imposed upon the Respondent by the learned Chief Magistrate on 16 August 2017?"
2 The question has arisen as a result of the facts stated in an affidavit filed by the applicant dated 14 December 2017. In addition, it is common ground that on 17 August 2017 the respondent was sentenced by Chief Magistrate Geason by a "Global Order" to 10 months' imprisonment commencing on 16 August 2017 on seven complaints including complaint number 11204/2016 and on complaint number 7089/2017 was sentenced to six months' imprisonment cumulative to the single sentence of 10 months' imprisonment recorded on complaint 11204/2016. The seven complaints, namely complaint numbers 6950/2016, 8064/2016, 8729/2016, 9845/2016, 11204/2016, 11205/2016, and 11209/2016 related to a miscellany of 11 summary driving, drugs, bail and police offences. The single complaint number 7089/2017 related to 2 minor drug offences and a prison offence.
3 The determination of the question involves the construction of reg 22(1) of the Corrections Regulations 2008 (the Regulations) which provides:
For the purpose of section 86 of the Act, a remission of the whole or any part of a prisoner's sentence is not to —
"(1)
(a) exceed 3 months if the period of imprisonment to which the remission relates is imposed after 1 January 1994; and (b) exceed one-third of the total period of imprisonment to which a prisoner is sentenced; and (c) operate so as to reduce the total period of imprisonment served by a prisoner to less than 3 months."
4 The same question was before Wood J in R v Director of Corrective Services; ex-parte Starling [2015] TASSC 24. At [19] her Honour set out three possible constructions of reg 22(1). They were:
"1
A remission must not exceed three months per sentence, and cannot exceed one- third of each sentence or reduce each sentence to a period of less than three months.
2
A remissions must not exceed three months per sentence, and remissions cannot exceed one-third of the sum of all periods of imprisonment to which the prisoner is subject, or reduce the sum of all periods of imprisonment to which the prisoner is subject to a period of less than three months.
3
Remissions must not exceed three months in relation to the sum of all periods of imprisonment to which the prisoner is subject, or exceed one-third of the sum of all periods of imprisonment to which the prisoner is subject, or reduce the sum
2 No 3/2018
of all periods of imprisonment to which the prisoner is subject to a period of less
than three months."
5 Wood J concluded that that the second interpretation accorded with the natural meaning of the regulation and was the correct construction. The applicant contends that Starling was incorrectly decided, and that the third interpretation is correct. The matter thus falls to be decided by this Court.
Wood J's reasoning
6 Before outlining the applicant's submissions in support of the third interpretation, it is useful to set out Wood J's consideration in Starling of the practical outcomes of each of the three constructions of reg 22. Her Honour set these out at [20]-[24] as follows:
"[20] The contrast in the outcomes produced by these interpretations can be seen when different sentencing orders of the same aggregate length are considered. It may be noted that an accumulation of sentencing orders may result from orders made by different sentencing courts, or by the exercise of discretion in imposing individual cumulative sentences, rather than a global sentence: Sentencing Act, s 11.
[21] I shall consider the consequences of interpreting the regulation in each way by looking at a range of sentencing orders, each totalling 12 months' imprisonment:
a) six cumulative sentences of two months' imprisonment. b) two cumulative sentences of six months' imprisonment; and c) one sentence of 12 months' imprisonment.
[22] Adopting the first interpretation set out above, as urged by the Director, would result in eligibility for the following remissions:
a) No remissions, because each sentence is less than three months in length. b) A remission of two months on each sentence; total remissions of four months. c) A remission of three months.
[23] Adopting the natural meaning of the words, the second interpretation above, would result in eligibility for the following remissions:
a) A remission of 20 days on each sentence; total remissions of four months. b) A remission of two months on each sentence; total remissions of four months. c) A remission of three months.
[24] The third interpretation has the following consequences depending on the structure of the sentence:
a) A remission of 15 days on each sentence; total remissions of three months. b) A remission of one month and 15 days on each sentence; total remissions of three months. c) A remission of three months."
7 Her Honour observed as to these outcomes at [25]-[26] as follows:
"[25] While the third interpretation produces a consistent outcome and provides certainty in that each prisoner is entitled to three months' remission no matter the structure or length of their sentence, this interpretation is, as explained, contrary to the plain meaning of reg 22.
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[26] The interpretation pressed on behalf of the Director [the first interpretation] has a strikingly arbitrary impact when applied to cumulative sentences involving a short term of imprisonment, each three months or less. There is no eligibility for remissions in such a case. The second interpretation does not have this arbitrary consequence." [Emphasis added.]
8 As I apprehend it, the explanation referred to by Wood J was that the third interpretation was contrary to the plain meaning of reg 22 because, in her view, the natural meaning to be attributed to the regulation was that subreg (1)(a) was applied with respect to an individual sentence, even in the case of cumulative periods of imprisonment being served, while subreg (1)(b) and (c) were applied with respect to the aggregate of those periods in the case of cumulative sentences. Her Honour set this out this at [14]-[18] in the following terms:
"14] I make the following observations about the ordinary and natural meaning of t[he words in reg 22. The opening words, 'the whole or any part of the prisoner's sentence', reflect the terms of s 86(2) of the Act. The words should be given the same meaning: Acts Interpretation Act 1931, s 19. To my knowledge, the words in the Act have not been considered either. Regulation 22 is the nuts and bolts provision with respect to the Director's power to grant a remission of a sentence. It seems to me entirely open to read the subregulations that follow the opening words of reg 22 as limiting the Director's power to grant a remission with respect to a sentence, including with reference to matters extraneous to the sentence, for instance, other periods of imprisonment being served. The natural meaning of the phrase 'total period of imprisonment' in subreg (1)(b) and (c) and also (2)(b), extends to an aggregation of periods. The words of the regulation as a whole would strongly suggest that 'total period of imprisonment' is not confined to an individual sentence. Otherwise, I ask rhetorically, why was this phrase chosen, rather than the word 'sentence'? There is, in my view, a clear indication in the text that "total period of imprisonment" has a meaning that is different to a 'sentence'. It may be noted that in other ways the limiting effect of the regulation looks beyond the instant sentence, and takes account of other considerations. For example, it takes account of a conviction for escape (reg 22(2)(a)) and the operation of parole (reg 22(3)).
[15] While subregs (1)(b) and (c) and also (2)(b) are concerned with the 'total period of imprisonment', subreg (1)(a) is not, and makes no reference to this phrase. While 'period of imprisonment' is used in subreg (1)(a), it is only used to tie down the operative date of the scheme. The terms of subreg (1)(a) provide another limit or cap on remissions, this time with reference to the sentence as referred to in the opening words of subreg (1). The natural meaning to be attributed to the regulation, therefore, is that subreg (1)(a) is applied with respect to an individual sentence, even in the case of cumulative periods of imprisonment being served, while subregs (1)(b) and (c) are applied with respect to the aggregate of those periods in the case of cumulative sentences. Of course, in the case of only one sentence of imprisonment, then that represents the total period of imprisonment, and subregs (1)(b) and (c) are applied with respect to that sentence. In essence, the structure of and terminology employed in reg 22(1) potentially results in two different types of limitation, one type affecting the sentence of imprisonment in question, and the other, more expansive, encompassing the aggregate of cumulative or partly cumulative periods.
[16] It is worth noting that this approach is consonant with the approach of the courts in other respects. The courts have held that a distinction in the Act or Regulations between a 'sentence' and a 'period of imprisonment' has significance, and the choosing of different words connotes a different meaning. Section 70 of the Act is one example: see Young v Wilson [2015] TASSC 16 at [46] and Devine v The Queen [2003] TASSC 52 per Slicer J at [13]. Thus, 'continuous period of imprisonment' has been held to mean a term or terms of imprisonment served as a result of one or more sentences.
[17] There is nothing else in the Regulations that undermines this interpretation of reg 22. Elsewhere in the Regulations, there is a distinction drawn between a sentence and period of imprisonment: see, for instance, regs 22(3) and 24. There is also
4 No 3/2018
nothing that I can see contained in the Act or the Sentencing Act 1997 which would
be counter to this interpretation.[18] Whilst reg 22 commences with a focus on the Director's grant of a remission per sentence, I see no tension in interpreting that provision so that remissions are capped, in part, with reference to an aggregate period of imprisonment resulting from more than one sentence. Thus, it seems to me that there is nothing in the terms of the regulation which suggests that an aggregate or total period of imprisonment should not have a role with respect to the calculation of remissions." (Emphasis added.)
The applicant's submissions
9 In her written outline of the applicant's submissions, senior counsel for the applicant, Ms Rudolf, summarises the applicant's contention that the third interpretation is correct and preferable, as follows:
"6 In support of the contention that the third interpretation advanced by Wood J is correct and preferable, it will be submitted that:
a) the third interpretation gives reg 22(1) its ordinary meaning, and promotes its purpose. It means that only one grant of remission is made to a prisoner, towards the end of prisoner's time in prison, thus promoting good behaviour throughout that time;
b) the third interpretation focusses on the words 'a remission', and gives meaning
to the phrase 'the whole or any part of the prisoner's sentence', as the subject matter
of the remission;
c) the second interpretation of reg 22(1) does not give effect to the ordinary meaning, because:
• it fails to give meaning to the words 'the whole or' in the opening words; • it is inconsistent with the use of the phrase 'period of imprisonment' in paragraph (a); • it gives different meanings to the opening words of reg 22(1): in respect of paragraph (a) it interprets them as referring to a single grant of remission for a single sentence; while in respect of paragraph (b) it interprets them as 'all remissions'; and • it gives effect to the one-third limit by applying it to each separate grant of remission for each separate sentence; thereby giving no meaning to the word 'total' in paragraph (b); d) the third interpretation should also be preferred because it is logical, and produces a consistent result. In contrast, the second interpretation is difficult to understand, or apply, and in some circumstances potentially reduces the deterrent effect of reg 22(1)."
10 Counsel for the applicant submits that the third interpretation focusses on the words "a remission" in the opening words of reg 22(1), while rendering the phrase "the whole or any part of the prisoner's sentence" the subject matter of the remission. This, she contends, does no violence to the opening words, and requires no straining of the ordinary meaning of the words and phrases in the remainder of the sub-regulation.
11 In contrast, counsel for the applicant submits that the first and second interpretations focus on the word "sentence" in reg 22(1), construing the use of that word to mean that the power to grant a remission attaches separately to each separate sentence a prisoner is serving. She argues that this does not give effect to the natural meaning of the opening words of reg 22(1), as it requires the reader to
ignore entirely the words "the whole or …", because if the Director's power to grant a remission
attached separately to each separate sentence, then he or she would never grant a remission of the
whole of a sentence.5 No 3/2018
12 Counsel for the applicant further submits that in considering the consequences of the second interpretation on a range of sentencing orders in Starling, Wood J gives effect to the one-third limit by applying it to each separate grant of remission for each separate sentence; thereby giving no meaning to the word "total" in reg 22(1)(b). Counsel argues that if the second interpretation were correct and there is power to grant a separate remission in relation to each separate sentence, the limitation in reg 22(1)(a) would have naturally referred to "the sentence to which the remission relates", not "the period of imprisonment to which the remission relates". She submits that the choice of words is meaningful, and reflects that the words "a remission" relate to "a period of imprisonment", which will often include more than one sentence. She adds that it is also natural that the word "total" does not precede the words "period of imprisonment" in reg 22(1)(a) as it does in reg 22(1)(b) and (c), because those latter two paragraphs are concerned with the overall length of the period of imprisonment, whereas para (a) is only concerned with the date on which the period of imprisonment was imposed.
13 Finally, counsel for the applicant submits that the third interpretation best promotes the purpose of the remission system, namely to motivate good behaviour by prisoners, because it provides only one grant of remission made to a prisoner towards the end of a prisoner's time in prison, thus promoting good behaviour throughout that time. In contrast, she argues, under the second interpretation a grant is made at the end of each separate sentence and cannot be retracted or cancelled if bad behaviour later occurs.
The respondent's submissions
14 Counsel for the respondent, Mr Stevens, submits that Wood J correctly interpreted the regulations in Starling and that this Court ought to confirm that interpretation.
15 Counsel for the respondent made the following written submissions:
"Purpose
12 It is submitted that the second interpretation best promotes the purpose of the remission system: to motivate good behaviour by prisoners.
13 The second interpretation requires that prisoner be of good behaviour during each period of a cumulative list of sentence.
14 While it is true that as each remission is granted, it cannot be withdrawn if the prisoners behaviour deteriorates after the grant, however, that is irrelevant because, as a matter of law, the prisoner has served the sentence to which those remissions relate. There is manifest unfairness in not granting remissions on any sentence where the prisoner behaves in a manner in which remissions are and should be granted.
15 Such a regime means that prisoners which cumulative sentences are treated in the same manner as prisoners who serve individual sentences.
16 The same applies to the applicant's submissions in relation to the discouraging of escapes. A consistent result, easy to understand and apply 17 Ease of calculation should not be a basis upon which remissions are reduced, nor a basis upon which the legislation ought to be interpreted.
18 The problem is the manner in which the sentence(s) is communicated to the applicant. In the case of the respondent, there would be no difficulty in calculating the two (2) periods of remissions if the Court provided documents reflecting the sentences as actually pronounced.
19 There is a significant difference, logically and legally, between a single long sentence and a cumulative period of imprisonment. The sentences as pronounced must be taken to reflect the criminality involved and the application of the proper sentencing principles."
6 No 3/2018
Discussion and conclusion
16 I prefer the applicant's contentions. Save that I do not find the history of the regulations to be particularly instructive, I accept and gratefully adopt the closely reasoned written submissions of senior counsel for the applicant, summarised by her as I have set out at [9] above, and adumbrated by
me at [10]–[13] above. I am unable to usefully improve on Ms Rudolf's articulation of those
arguments. On the basis of the reasoning advanced by her I do not apprehend that the third interpretation is necessarily contrary to the plain meaning of reg 22 as explained by Wood J in Starling.
17 It follows that I respectfully depart from the reasoning and conclusion of Wood J in Starling,
and I would grant declaratory relief as follows:
"Upon the proper construction of the Corrections Act 1997, s 86 and the Corrections Regulations 2008, reg 22, the maximum period of remission of sentence which may be given by the Applicant to the Respondent in respect to the total period of imprisonment imposed upon her by the learned Chief Magistrate on 17 August 2017 is three months."
7 No 3/2018
File No 3573/2017
NICHOLAS STEPHEN EVANS in his capacity as
THE DIRECTOR OF CORRECTIVE SERVICES v KATIE MAREE JOB
| REASONS FOR JUDGMENT | FULL COURT PEARCE J 2018 |
18 The applicant, the Director of Corrective Services, applies for determination of a question of construction arising under a statute, the Corrections Act 1997, and the regulations made under that Act, the Corrections Regulations 2008. When the application came before the Associate Judge, his Honour directed that the question be reserved for consideration or determination by this Court: Supreme Court Civil Procedure Act 1932, s 15(1)(d). The question concerns the Director's power to grant to a remission of sentence when a prisoner is serving, or is to serve, more than one term of imprisonment. The question posed in the application is specifically directed to the circumstances of the respondent, a sentenced prisoner.
19 On 17 August 2017 the respondent was sentenced by the Chief Magistrate for summary offences. Her Honour imposed two sentences. The first sentence was imposed for 14 offences specified in seven complaints. For those offences the respondent was sentenced to imprisonment for ten months commencing on 16 August 2017. The second sentence was imposed for three other offences specified in a different complaint. For those offences the respondent was sentenced to imprisonment for six months to be served cumulatively. The Director poses the question for determination in these terms:
"Upon the proper construction of the Corrections Act 1997, s 86, and the Corrections Regulations 2008, reg 22, what is the maximum period of any remission(s) of sentence(s) which may be given by the applicant in respect to the sentence(s) of imprisonment imposed on the respondent by the learned Chief Magistrate on 16 August 2017."
20 The application is made and referred to this Court, because the Director urges a different answer to the question posed about the meaning and operation of the regulation than was determined by Wood J in R v Director of Corrective Services; ex p Starling [2015] TASSC 24, 24 Tas R 336. In simple terms, the question to be determined is whether the Director may grant the respondent remission of each of the sentences she is serving, or only one remission for the total sentence. As will be explained, if the former is the case then a remission of up to five months may be granted. If the latter is the case, as is contended by the Director, then the maximum remission which may be granted is three months.
21 One issue to be determined is whether this Court should answer the question at all. Although the question is directed at the circumstances of the respondent, the answer will have application to other current and future prisoners. The Director submits that this Court has jurisdiction to answer the question by operation of the Supreme Court Rules 2000, r 89(a). However, r 89(a) is procedural and does not confer jurisdiction. What, in effect, is being asked for is a declaration of the correct interpretation of the regulation in the case of the respondent, but which will have general application.
22 The remission system operates as an incentive for the encouragement and reward of good behaviour by prisoners while serving a sentence: Hoare v The Queen (1989) 167 CLR 348 at 351. The Corrections Act, s 86 provides:
"86 Remissions
8 No 3/2018
The Director may grant to a prisoner a remission of the whole or any part of the prisoner's sentence pursuant to regulations made under section 90(2)(d)."
23 The Director of Corrective Services appointed under the Corrections Act is responsible to the Secretary of the Department for, amongst other things, "the care and direction of all prisons, prisoners and detainees and the control of all prisons", and "the order and control of all prisoners and detainees". The terms of s 86 make clear, as was pointed out by the Court of Criminal Appeal in Taylor v The Queen [2015] TASCCA 7 and in many other cases, that a sentenced prisoner has no right to any remissions. The grant of remissions is a matter for the executive arm of government in accordance with the regulations. Remissions are granted at the discretion of the Director. There can be no guarantee that a person serving a sentence of imprisonment will be granted the maximum, or any, remission: R v Maguire and Enos (1956) 40 Cr App R 92 at 94; Hoare at 354; Hyland v The Queen A82/1996, [1996] TASSC 144 at [26] and [77]. It may be that if a prisoner behaves well while serving the sentences, he or she can expect to be granted the remissions potentially available, but it is not a matter of right.
24 By s 90, the Governor may make regulations including for:
"(a)
the management, good order and security of prisons and discipline and welfare of prisoners and detainees, the privileges of prisoners and detainees and the procedures for hearing and dealing with prison offences and acts of misconduct by prisoners and detainees; and
(b)
the regulation and control of prisoners and detainees and the preservation of order; and
(c) 01/act-2016-052 - GS19@EN…
(d) the mitigation or remission, conditional or otherwise, of the sentence of a prisoner as an incentive to, or reward for, good conduct while the prisoner is serving his or her sentence; …".
25 Regulation 22 of the Corrections Regulations 2008 is the currently applicable regulation:
"22 Remission
For the purpose of section 86 of the Act, a remission of the whole or any part of a prisoner's sentence is not to —
(1)
(a)
exceed 3 months if the period of imprisonment to which the remission relates is imposed after 1 January 1994; and
(b)
exceed one-third of the total period of imprisonment to which a prisoner is sentenced; and
(c)
operate so as to reduce the total period of imprisonment served by a prisoner to less than 3 months.
(2) Remission of sentence is not to be granted to a prisoner who is –
(a) convicted of escape or attempted escape in respect of that part of the prisoner's sentence served up to and including the day on which the escape or attempted escape was made; or (b) sentenced to a total period of imprisonment of 3 months or less. (3) The Director is not to grant a remission of sentence to a prisoner if that remission would operate to reduce the total period of imprisonment served by the prisoner in respect of that sentence to a period that is shorter than any non-parole period specified in an order made in respect of that prisoner under section 17(2)(b) of the Sentencing Act 1997.
(4) …".
26 The ambiguity in the regulation largely arises from the interaction of the terms "the whole or any part of a prisoner's sentence" in the opening words, "period of imprisonment to which the
9 No 3/2018
remission relates" in reg 22(1)(a), and "total period of imprisonment" in reg 22(1)(b) and (c). As the
issue was expressed by Wood J in Starling at [6]:"The question that has been raised concerns the meaning of reg 22(1)(a), (b) and (c). In particular, what does the phrase 'total period of imprisonment' in reg 22(1)(b) and (c), and (2)(b), mean? Is it to be interpreted to mean the total period of imprisonment imposed in relation to any given sentencing order ('per sentence'), or is it to be interpreted so as to relate to the sum of all periods of imprisonment that a prisoner is serving, encompassing cumulative sentences of imprisonment?"
27 The Director submits that the correct interpretation of the regulation is that the Director may grant the prisoner a maximum remission of three months. That is so because, in accordance with the interpretation contended for by the Director, no prisoner may be granted a remission of greater that three months, regardless of how many sentences are being served by that prisoner and the length of the total term or terms of imprisonment being served, because the regulation gives power to allow only one remission of a maximum of three months. In Starling, Wood J determined an application for an order in the nature of mandamus concerning the eligibility of a sentenced prisoner for remission of sentence. Her Honour reviewed the various alternative possible interpretations of reg 22 and stated them as follows:
1 A remission must not exceed three months per sentence, and cannot exceed one-third of each
sentence or reduce each sentence to a period of less than three months.
2 A remissions must not exceed three months per sentence, and remissions cannot exceed one-third of the sum of all periods of imprisonment to which the prisoner is subject, or reduce the sum of all periods of imprisonment to which the prisoner is subject to a period of less than three months.
3 Remissions must not exceed three months in relation to the sum of all periods of imprisonment to which the prisoner is subject, or exceed one-third of the sum of all periods of imprisonment to which the prisoner is subject, or reduce the sum of all periods of imprisonment to which the prisoner is subject to a period of less than three months.
28 Her Honour determined that the second interpretation is correct. Although, in Starling, the Director contended that the first interpretation was correct, he now contends that her Honour was in error, and the third interpretation is to be adopted. In the case under consideration the prisoner is to serve two sentences: imprisonment for ten months from 10 August 2017 and a cumulative sentence of six months. If the reference to "sentence" and "the total period of imprisonment" applies to each of the sentences imposed by the learned magistrate, the effect is that, there being no specified non-parole period for either sentence so as to give effect to reg 22(3), the Director may, under reg 22(1), grant a remission not exceeding five months calculated in the following manner:
for the sentence of ten months, a remission not exceeding three months – being the maximum period permitted by par (a), not exceeding one-third of the period of imprisonment in accordance with par (b) and not operating to reduce the sentence to less than three months in accordance with par (c); and
for the sentence of six months, grant a remission not exceeding two months, one-third of the
sentence, being the maximum period permitted by par (b).29 If the references to "sentence" and the "total period of imprisonment" mean the total term of imprisonment to which the respondent was sentenced taking both sentences into account, 16 months, then the Director may grant a remission not exceeding three months being the maximum period permitted by par (a) of reg 22(1).
30 The question posed by the application involves an exercise of statutory construction in accordance with the principles stated in cases such as Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47] and Australian Education Union v Department of Education and
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Children's Services [2012] HCA 3, 248 CLR 1. The process begins with a consideration of the text itself. The meaning of the text will often require consideration of the context, which includes the general purpose and policy of the provision. Questions of context arise "in the first instance, not merely at some later stage when ambiguity might be thought to arise": CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 and Independent Commission Against Corruption v Cunneen [2015] HCA 14, 256 CLR 1 at [31] and [57]. Where two or more constructions of a provision are available, the court will prefer a construction that gives the provision a sensible operation: CIC at 408.
31 As was said in Project Blue Sky Inc:
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. ...
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions." [Emphasis added, footnotes omitted.]
32 In this case, even with careful consideration of the text, context and apparent purpose of reg 22, the path to ascertaining its meaning is, for me at least, almost impenetrable. It is poorly drafted. There is no definition in the Act or Regulations of the term "sentence", the phrase "period of imprisonment" or the phrase "total period of imprisonment". Each of those terms is susceptible to the attribution of different meanings. This Court is asked to determine the meaning of delegated legislation. Although the same rules of construction apply, I would have thought that if the Executive was concerned to establish a clear meaning for the regulation which coincided with the policy of the Executive, it would have been a relatively simple matter to draft a regulation expressed in terms reasonably capable of being understood.
33 I have some hesitation about whether the question should be answered at all. The making of a declaration, which is effectively what is asked for, is discretionary. Part of my hesitation arises from the reality that, despite the high level of ambiguity and the difficulty in the task in the exercise of interpretation, the answer will be given general application. As the decision of this Court demonstrates, when considered with her Honour's decision in Starling and the contentions of the parties, there is much room for reasonable minds to differ about the meaning and operation of the provisions. It is very commonly the case that a prisoner may be subject to more than one sentence of imprisonment. That may be so for a number of reasons. As in this case, a single sentencing court may impose separate sentences of imprisonment for different offences. The powers available to a sentencing court are set out in the Sentencing Act, s 11:
"11 Court may impose single, general or mixed sentence A court may impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments —
(1)
(a) one sentence for all of those offences; or
(b) a separate sentence for each of those offences; or
(c) one sentence for a group of those offences determined by the court and —
(i) one sentence for all of the remaining offences; or (ii) a separate sentence for each of the remaining offences; or 11 No 3/2018
(iii) a separate sentence for each other group of the offences remaining as the court determines and a separate sentence for each offence remaining, if any, as is not within any such group.
(2) In imposing a single sentence on an offender for more than one offence, a court must not impose a penalty exceeding the sum of the maximum penalties that could otherwise have been imposed for those offences."
34 Imposition of separate sentences or a single sentence is a matter for the discretion of a sentencing court. An offender may also be subject to more than one sentence of imprisonment imposed by different sentencing courts. A sentence or sentences of imprisonment may be imposed when an offender is subject to an uncompleted sentence of imprisonment that the offender is already serving or liable to serve. The commencement dates for sentences of imprisonment are to be determined in accordance with the provisions of the Sentencing Act, ss 14, 15 and 16. Depending on the application of those provisions, sentences of imprisonment may be served concurrently, partly concurrently, or cumulatively. Prisoners, when sentenced, may then be subject to activation of suspended sentences previously imposed. Some sentences may include parole orders and some may not.
35 No appeal was brought from her Honour's decision in Starling. However, I have had the benefit of considering, in draft form, the reasons of Brett J. I have concluded that, for the reasons his Honour gives, the question should be answered in the form of a declaration in the terms his Honour has formulated. I respectfully agree that the interpretation of the Act and regulation determined by his Honour is the one which should be applied. It best reflects the meaning of the text of the provisions, and their legislative history, to which I will refer later in these reasons. Most importantly, I agree that the term "sentence" in s 86 should be read so that the term has the same meaning as its use in the Sentencing Act as part of a wider interconnecting scheme of sentencing legislation, so as to give the scheme consistent and harmonious operation. His Honour's approach best achieves that result. According to the ordinary meaning of the text, the term "sentence" is used in the singular, in the similar way to its use in the Sentencing Act, which contemplates in s 11, for example, the imposition of one sentence for more than one offence, or a separate sentence for each offence. The Director submits that the term "sentence" in the opening words of the regulation, although expressed in the singular, includes the plural by operation of the Acts Interpretation Act 1931, s 24(d). However, ordinarily, terms of such general application should be given a common meaning across related legislation.
36 Estcourt J, in his reasons, has set out the submissions of counsel for the Director in detail. I need not do so again. Counsel for the Director placed significance on inclusion of the words "whole or any part" in the opening part of the regulation. She contends that the second alternative interpretation of the regulation adopted by Wood J, and contended for by the respondent, fails to give meaning to the words "the whole or" in the opening words, because if the power to grant remissions applies to each sentence, the Director would never grant a remission of the whole sentence. She submits that the alternative interpretation should apply because, if it means one remission limited to three months may be granted, it enables, for example, the Director to grant a remission of up to three months of a total sentence of twelve months made up of 12 consecutive sentences of one month. The Director could then do so by remitting the whole of the last three (one month) sentences. I do not think that the contention strengthens the Director's argument. First, I think it attributes more significance to the inclusion of the words than is warranted. The Corrections Act, s 86, gives the Director a broad discretion to grant remission of "the whole or any part of the prisoner's sentence", limited only by the terms of the regulation. Put in a slightly different way, the Director may, subject to the regulation, remit the whole or any part of a sentence. Thus, the Director has a broad discretion to remit the whole or part of a sentence, but must do so in accordance with the regulations. If it was in accordance with the regulations, the Director could remit the whole of a sentence. The quantitative controls on doing so flow from the rest of reg 22. In my view, those words do not assist in the process of identifying the meaning of the rest of the provision. The significance attributed to those words, to me, involves a
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confusing and circular mix of the plural and the singular. It involves the assertion that the Director may remit three months of a prisoner's "sentence", which may be an aggregation of sentences, by allowing remission of the whole of the prisoner's sentence, that whole being the whole of a sentence which forms part of the aggregation.
37 The Director submits that the interpretation he contends for serves the purpose of the remissions system by encouraging good behaviour throughout the term being served by a prisoner. His counsel argues that, if a remission applied to each sentence, then a remission may be granted for one sentence, but, when that sentence was completed, could not be taken back in the event of bad behaviour. The submission should not be accepted for the reasons explained by Brett J. I would add that I do not see any reason why the Director could not defer decision about remissions until towards the end of the total term to be served, and granted or not, in accordance with the total maximum period which may be allowed at that stage in the exercise of his discretion. It is for the Director to exercise his discretion as and when he sees fit.
38 The legislative history sheds some light on the exercise of statutory interpretation. In my view it supports Brett J's conclusion that the purpose of reg 22 is to provide quantitative limits upon the exercise of the discretion to grant remissions with a view to ensuring that the grant does not unduly undermine the punitive effect of a sentence of imprisonment, and that the regulation applies to each individual sentencing order. In Tasmania, legislation has provided for the grant of remissions since at least 1868. The Prison Act 1908 amended the 1868 Act and gave the Governor power to "make such regulations as he thinks fit for the mitigation or remission, conditional or otherwise, of the sentence of any prisoner as an incentive to, or reward for, good conduct whilst undergoing his sentence". The Governor was empowered to "grant at any time to any prisoner a remission of the whole or any portion of his sentence upon condition of his giving security, by recognisance, for his good behaviour: ss 4 and 5. Between 1908 and 1977 various regulations were made under the 1868 Act, as amended in 1908. In 1908 the regulation allowed remission for "good conduct and industry" according to a scale depending on whether the prisoner had prior convictions, and depending on the length of "the sentence" to a maximum of one-third of "the sentence". In 1937 the regulation allowed the grant of a remission by reason of a prisoner's "good conduct and industry during the whole of the period served by him" according to a scale up to a maximum of one-third of "his sentence". The 1961 regulation permitted remission to a prisoner for "good conduct and industry during the period of imprisonment served by him" for a period "not exceeding one-quarter of his sentence" but not so as to reduce "a sentence" to less than three months.
39 In 1997 the Prison Act 1997 was enacted. By s 40, it provided for the grant to a prisoner of "a remission of the whole or any part of his sentence pursuant to regulations". A new regulation was made the same year which provided for grant of remission of sentence "by reason of that prisoner's good conduct and industry during the period of his imprisonment", but not to exceed "one third of the period of sentence of a prisoner; or to reduce a sentence to less than three months". In 1985 new regulations were made, which permitted remission by reason of "that prisoner's good conduct and industry during the period of his imprisonment" but not to "exceed one-third of the total period of imprisonment to which a prisoner is sentenced" or "operate so as to reduce the total period of imprisonment served by a prisoner to three months".
40 In 1993, a significant amendment to the regulations was made in accordance with the "truth in sentencing" movement, which led to the reduction or abolition of remissions across various jurisdictions in Australia. The regulation was put into a form which is closer to, but not the same as, the present regulation. In the introductory words it referred to the grant of remission "by reason of that prisoner's good conduct and industry during the period of his imprisonment", and then, in subreg (2), provided:
"(2) A remission of sentence granted under the regulation is not to:
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(a) exceed 3 months if the period of imprisonment to which the remission relates is imposed after 1 January 1994; and (b) exceed one third of the total period of imprisonment to which a prisoner is sentenced; and (c) operate so as to reduce the total period of imprisonment served by a prisoner to less than 3 months."
41 Subregulation (3) of the 1993 regulations is in the same terms as subreg (2) of the current regulations as it refers to prisoners convicted of escape. It is to be noted this provision does not make use of the words "whole or any part of a prisoner's sentence". Those words were not introduced into the introductory part of the regulation until 1998, when the regulation was amended to its current form. The difference is that the first subregulation referring to the "period of his imprisonment" is removed, and subreg (1) became:
"(1) For the purpose of section 86 of the Act, a remission of the whole or any part of a prisoner's sentence is not to ...".
42 For the foregoing reasons I agree with Brett J and would make a declaration in the terms proposed by his Honour.
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File No 3573/2017
NICHOLAS STEPHEN EVANS in his capacity as
THE DIRECTOR OF CORRECTIVE SERVICES v KATIE MAREE JOB
| REASONS FOR JUDGMENT | FULL COURT BRETT J 2018 |
43 I have had the benefit of reading the draft reasons of Estcourt J for his Honour's conclusion that the question of construction posed by the originating application should be determined in accordance with the third interpretation considered by Wood J in R v Director of Corrective Services; ex parte Starling [2015] TASSC 24, with the consequence that the maximum period of remission which may be granted by the applicant to the respondent in this case is a period of three months.
44 I am grateful for the opportunity to review these draft reasons. I agree with and respectfully adopt his Honour's summary of the issue and submissions in this case, and his Honour's analysis of the judgment of Wood J in Starling. However, I have reached a different conclusion in respect of the interpretation and operation of the relevant provisions, and the consequent result in respect of the maximum remission of the respondent's sentences.
45 I have also read the reasons in draft of Pearce J and agree with what his Honour has written.
46 The construction question posed in the originating application refers to the provisions of s 86 of the Corrections Act 1997, as well as reg 22 of the Corrections Regulations 2008. This is appropriate, because the relevant provisions of both the empowering Act and the regulations, taken together, create a legislative scheme in respect of the grant of remissions. They are part of a wider legislative scheme relating to the formulation and operation of sentences of imprisonment generally. I will refer in more detail to the wider scheme shortly. The legislative scheme is relevant to the construction question because the regulations, in particular, should be construed in accordance with their statutory context which "includes the legislation under which they are enacted and with which they are required to be consistent": Master Education Services Pty Ltd v Ketchell [2008] HCA 38, 236 CLR 101 at [19]. Further, expressions used in the regulations shall have the same respective meaning as those contained in the Act: Acts Interpretation Act 1931, s 19.
47 The provisions of s 86 provide the basis for and underpin the statutory scheme in respect of remissions for good behaviour. That section confers upon the applicant (to whom I will refer throughout these reasons as "the Director") a discretion to grant to a prisoner a remission of the whole or any part of the prisoner's sentence. A remission, in this context, is simply a reduction in sentence. Without more, the simple words of the statutory provision would confer upon the Director an unfettered discretion to remit the whole or part of a sentence. However, the balance of the section makes it clear that the discretion to grant a remission must be exercised in accordance with the regulations made pursuant to s 92(d). That subsection authorises regulations for "the mitigation or remission conditional or otherwise of the sentence of the prisoner as an incentive to or reward for, good conduct while the prisoner is serving his or her sentence".
48 The identification of s 86 as the primary source of the Director's authority to grant remissions is confirmed by the opening words of reg 22(1). Those opening words and what follows in the three subparagraphs are formulated in a manner which demonstrates that the purpose of reg 22 is to regulate and confine the discretion which arises under s 86 to grant a prisoner a remission of the whole or any part of the prisoner's sentence. Paragraphs (a), (b) and (c) are clearly intended to provide quantitative limits on the grant of the remission. Those quantitative limits expressly apply, by the opening words of the regulation, "For the purpose of section 86 of the Act" in respect of "a remission of the whole or
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any part of the prisoner's sentence". In her submissions, the applicant's counsel relied heavily on the use of those words. It is submitted that they operate independently within the regulation and, accordingly, the regulation should be interpreted in a manner which permits the possibility of the remission of the whole of the sentence. I do not accept that submission. It seems to me that the use of the opening words simply confirms that the operative provision is in fact s 86, qualified by quantitative restrictions imposed by the operative parts of the regulation, the subparagraphs. The opening words are intended to refer the regulation back to the statutory provision, and, in my view, are not intended to have independent operation. I see no difficulty with an interpretation of reg 22 which means that there can never be the remission of the whole of a sentence. The phrase "the whole
or any part of the … sentence" is used in s 86 within words which make it clear that the wide
unfettered discretion thereby granted may be qualified and confined by the regulations. That is precisely the combined effect of the statute and the regulations. It is clear, therefore, that the regulations do not independently confer authority to grant remissions. Under the statutory scheme, the source of the Director's power in respect of remissions is s 86, albeit that that power is qualified by the quantitative constraints imposed by the regulations.
49 The starting point, therefore, in determining the operation of the statutory scheme is the construction of s 86. The process of statutory construction must begin with a consideration of the text itself. I see little difficulty in construing the plain words of that section. The section authorises a single remission in respect of "the prisoner's sentence". The conclusion that s 86 authorises a single grant of a remission in respect of a single sentence is apparent from the plain wording of the provision, and is also reinforced by the provisions of s 87, which provides for special remissions in addition to "the prisoner's entitlement to ordinary remissions on account of good behaviour" in certain special circumstances.
50 The observation which is important in the context of the construction question is that the grant of a remission is authorised in respect of "a sentence". The term "sentence" is not defined in the Corrections Act, apart from an inclusive definition which is not relevant for present purposes. However, a review of other provisions of the Corrections Act and the legislative history justifies the conclusion that "sentence" in s 86 bears the same meaning as its use in the Sentencing Act 1997. It is a reasonable conclusion that these Acts are part of a wider interconnecting scheme of legislation in respect of sentencing, which, of course, includes sentences of imprisonment: R v Mailes [2001] NSWCCA 155, 53 NSWLR 251, Wood CJ at CL at [108]. Both pieces of legislation were enacted together and commenced on the same day, 1 August 1998. In the second reading speech in respect of the Sentencing Bill, made on 13 August 1997, the then Attorney-General acknowledged that the Sentencing Bill and the Corrections Bill were "cognate" pieces of legislation. A review of each Act reveals that this is clearly so. They relate to the same subject-matter and there are many examples of interaction between their respective operation. Accordingly, the Acts should, if possible, be construed in a way that is consistent and gives the scheme harmonious operation: Sweeney v Fitzhardinge (1906) 4 CLR 716.
51 Section 7 of the Sentencing Act provides that a court which finds a person guilty of an offence may, among other orders, record a conviction and order that the offender serve a term of imprisonment. Section 11 provides that where an offender has been convicted of more than one offence, the court may impose one sentence for all of those offences, a separate sentence for each of those offences, or one sentence for a group of offences, and a combination of separate or combined sentences in relation to other offences. It follows that an individual sentence may relate to one or more offences, as determined by the court, in accordance with that section. As is the case in respect of these proceedings, the court may impose more than one sentence at the same time.
52 The use of the word "sentence" by reference to the individual sentencing orders of the sentencing court, is consistent with the use of the term throughout the balance of the Sentencing Act and the Corrections Act. For example, ss 14 and 15 of the Sentencing Act deal with the
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commencement date of individual sentences and the relationship between various sentences, including those imposed at the same time, by reference to their respective commencement dates. Section 17 provides that a court that imposes a sentence of imprisonment on an offender may order that the offender is not eligible for parole in respect of that sentence before the expiration of a specified period. As Blow J (as he then was) pointed out in Carr v Department of Police and Emergency Management [2009] TASSC 74:
"That provision empowers a judge or magistrate to specify a non-parole period in respect of a sentence. But it does not empower a judge or magistrate to impose a non- parole period in respect of the aggregate of two separate sentences."
His Honour held that a magistrate did not have power to impose a single non-parole period in circumstances where the magistrate, at the same hearing, had activated a suspended sentence, and imposed a cumulative sentence in respect of different offences. The magistrate was only empowered to impose a separate non-parole period in respect of each sentence.
53 This construction of the term "sentence" is recognised by, and accounts for, the provisions of s 71 of the Corrections Act. That section adjusts the operation of s 17 of the Sentencing Act in the case of cumulative sentences each containing non-parole periods, so as to ensure that the non-parole periods operate cumulatively. While the section expressly overrides the consequences that would flow as a result of the cumulative nature of various sentences imposed in accordance with s 11 of the Sentencing Act, it is required to do so because the meaning of a "sentence" is assumed to be consistent with its usage in s 11.
54 Once it is understood that the power conferred by s 86 relates to a grant of remission of a "sentence" so defined, the operation of reg 22 becomes clear. The Director may grant to a prisoner a remission of the whole or any part of the sentence, but only pursuant to the regulations, in particular, reg 22. By reg 22, such a remission is subject to quantifiable limits. Those limits are:
(a) the remission is not to exceed a period of three months; and (b) must not exceed one third of the total period of imprisonment; and (c) must not operate so as to reduce the total period of imprisonment served by a prisoner to less than three months. 55 In Starling, Wood J considered that the reference to "a total period of imprisonment" in (b) and (c), rather than use of the phrase "period of imprisonment" as in (a), was significant. Her Honour concluded that the "total period of imprisonment" is a reference to the aggregate of sentences to which the prisoner is subject at the time of the grant of remission, whereas "period of imprisonment" is a reference to each individual sentencing order. As I will discuss shortly, I agree with the latter but not with the former conclusion.
56 The crucial point, in any event, is that the limits on quantification imposed by reg 22, relate to the grant authorised by s 86, that is, the grant of remission of "the prisoner's sentence". Accordingly, a grant is authorised in respect of each individual sentence to which the prisoner is subject. The current practice of the Director, as revealed by his affidavit, of assessing remissions on a "sentence by sentence" basis, is therefore correct. This is also consistent with the conclusion reached by Wood J in Starling.
57 Much of the debate in this case related to the practical consequences of the operation of the regulations, according to the competing constructions. It is legitimate, of course, to have regard to the operation of the provisions, in order to assess consistency with the legislative purpose. Counsel for the Director posited various scenarios, in particular, combinations of sentencing orders, with a view to supporting the Director's ultimate submission that the interpretation contended for by the Director operates in a consistent and cohesive way, and fulfils the legislative purpose. In Starling, Wood J went through a similar exercise. There is no doubt that the interpretation for which the applicant contends reflects consistent outcomes in respect of various combinations of sentencing orders. This is
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not surprising because the interpretation ignores the selection by the sentencing court of particular sentencing orders pursuant to s 11 of the Sentencing Act, and simply has regard to the aggregate. However, the force of this argument is reduced by the following considerations:
(a) The plain wording of the text of the regulation is not consistent with an intention that when determining remissions, the wider legislative scheme, which includes the selection of various sentencing orders by the sentencing officer in accordance with s 11 of the Sentencing Act, should be ignored. The choice of such orders is a matter of sentencing discretion, and is an important part of the legislative scheme. Multiple sentences are not intended to be regarded as having the same operation as a single global sentence. The wording of s 86 and, in particular, the relationship between a grant of remission and a "sentence", which is reflected in the opening words of reg 22(1)(a), suggests that the application of remissions is to be part of, and subject to, the overall scheme of sentencing, which includes the potential for different combinations of sentences under s 11. I see no warrant for an interpretation which results in the assessment of remissions in a manner which ignores and overrides that scheme. (b) Wood J found that the use of the term "the total period of imprisonment to which a prisoner is sentenced" in reg 22(1)(b) and (c) operates so as to provide a quantitative constraint on a grant of remission, by reference to the aggregate of multiple sentences. With respect to her Honour, I am not convinced that that approach is correct. That interpretation creates significant practical difficulties in its operation. This is particularly so in respect of reg 22(1)(b). Her Honour's reference in her description of the second interpretation to "remissions cannot exceed one third of the sum of all periods of imprisonment" suggests that (b) operates so that, at the time of the assessment of the grant of remission, the aggregate of various remissions which have been granted, or presumably are to be granted to the prisoner, including the grant under consideration, must not exceed the one third limit. This interpretation, however, is contrary to
the plain words of the provision which states that "a remission … is not to … exceed one third
of the total period of imprisonment to which a prisoner is sentenced". The clear words require that the remission of each sentence be subject to the one third limit, not an aggregate of the remission of various sentences. An interpretation which calculates a single remission on the basis that it must not cause the aggregate of multiple remissions to exceed the one third limit, would mean that the limit could easily be reached in respect of a remission granted in respect of the first or second of multiple cumulative sentences, leaving none available for subsequent sentences. This is because it would be undesirable, and in any event impossible, for the Director to predict future remissions. This outcome is not consistent with the legislative scheme. Alternatively, if the one third limit in respect of each remission is calculated afresh each time, but on the basis of the aggregate period of multiple sentences of imprisonment, then the limit is effectively meaningless in respect of any particular sentence.
I see no reason why the term "total period of imprisonment to which a prisoner is sentenced" should not relate simply to the total period of imprisonment relevant to the individual sentence, which is the first interpretation considered by her Honour in Starling. The use of that term can be explained on the basis that it is a reference to the whole sentence, including any non-parole period. This is consistent with the use of the phrase in reg 22(3). On the basis of that interpretation, the quantitative constraints will be calculated by reference to the individual sentence. This seems to me to be entirely consistent with the overall legislative scheme and with the purpose of the current formulation of reg 22. As Pearce J has demonstrated by his analysis of the legislative history, the purpose of reg 22 is to provide quantitative limits upon the exercise of the discretion to grant remissions, with a view to ensuring that the grant does not unduly undermine the punitive effect of a sentence of imprisonment. Further, on the basis of this interpretation, it is a simple matter to apply reg 22 to each discrete sentencing order. This fits well with a scheme whereby sentencing courts have discretion to formulate individual sentences in various combinations and in respect of multiple offences. According to that scheme, the appropriate sentencing order is made by the courts, and the grant of remission of that sentence,
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which is a matter for the Director, is assessed by reference to the specific order, subject to the
quantitative constraints set out in reg 22.
(c) The operation of the regulation according to the interpretation contended for by the Director has the potential for consequences which are contrary to the legislative purpose. The scenarios posited by counsel for the Director, which were intended to demonstrate the potential practical difficulties associated with a "sentence by sentence" approach, assume that a combination of sentencing orders have all been made at the same hearing. However, other scenarios may produce different consequences. For example, as was submitted by counsel for the respondent, a prisoner who has been sentenced to a term of imprisonment may have other pending matters awaiting plea and then sentence. On the basis of the construction contended for by the Director, it would be to the advantage of the prisoner to defer sentencing in respect of these other matters until after the completion of the existing sentence. If, during the term of that sentence, the prisoner is sentenced to further cumulative terms, then, on the basis of the single grant approach, the maximum remission would not increase beyond one three month period, and consideration of its grant would presumably be deferred until the end of the aggregate period. If, however, the prisoner is sentenced after the completion of the sentence, then there would be the possibility of a further grant of remission. This distinction would have no relevance if the remissions are applied on a "sentence by sentence" basis. As the purpose of remissions would seem to be to provide an incentive in relation to behaviour while serving a "sentence", it seems to me that the "per sentence" interpretation most closely reflects the intended legislative purpose of s 86. 58 In any event, it is questionable as to how much emphasis should be placed on the practical consequences of the operation of the provisions according to a particular interpretation. Those considerations are relevant insofar as they test the interpretation against the legislative purpose, but cannot override the plain and ordinary meaning of the text, and the principle of statutory construction that requires that the words of the text be given consistent meaning in this and like legislation. It must also be borne in mind that the power to grant remissions conferred by s 86 is discretionary. The discretion provides the Director with capacity to tailor the grant of remissions in a manner which is appropriate to the particular circumstances of the case. By fixing specific quantitative limits which are intended to have general application in respect of a wide variety of potential sentencing orders, it is inevitable that the effect will vary according to the combination of orders chosen by the sentencing officer. However, the legislative scheme accommodates some flexibility through the discretionary nature of the grant.
59 The Director's affidavit suggests that the calculation of eligibility for remissions on a "sentence by sentence" basis is complicated and difficult because of the inaccuracy and unreliability of warrants received from courts. The inaccuracy of the warrants in this case is presumably offered as an example. However, practical difficulty in communicating to the Director the precise terms of the court's orders can logically have no bearing on the proper interpretation of the statutory and subordinate legislation. It certainly cannot justify the adoption of an interpretation which is contrary to the plain and ordinary meaning of the text. The solution would simply seem to be to ensure that such communication is accurate, which ought not be a particularly difficult matter.
60 Finally, the Director points out that there is no mechanism to "retract" a remission once it has been granted, and this means that a prisoner, granted a remission in respect of the first sentence which has been completed, and who subsequently acts in a manner which is not deserving of a remission, will still be entitled to the preceding grant. I do not accept the logic of this complaint and, in any event, it does not demonstrate the operation of a system which is contrary to the legislative purpose. If remissions are granted on a "sentence by sentence" basis, as s 86 requires, there will always be the potential for the prisoner to earn remissions, albeit that this may occur incrementally, according to the combination of sentencing orders chosen by the sentencing officer. If a prisoner has exhibited good behaviour during the service of a sentence, notwithstanding that he is yet to serve a further cumulative
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sentence, and has thereby earned a remission of the first sentence, then the legislative purpose has been fulfilled. His conduct during the service of the cumulative sentence will be the subject of consideration in respect of the remissions applicable to that sentence. I see nothing about this which is inconsistent with the plain and ordinary meaning of the words used in s 86 and the overall legislative scheme. On the contrary, it seems to me to be entirely consistent with that purpose.
61 It follows that I am satisfied that the correct interpretation of s 86 and reg 22 is in accordance with the first interpretation considered in Starling, that is, that a single grant of remission may be made in respect of each individual sentence, and must not exceed three months, or one third of the total period of that sentence, nor reduce that sentence to less than three months.
62 I have reservations as to whether it is appropriate for this Court to exercise its discretion to grant declaratory relief. Having regard to the contents of the Director's affidavit, it would seem that the Director is currently correctly applying the law with respect to the grant of remissions, although if the calculation in respect of reg 22(1)(b) and (c) is proceeding in accordance with the second interpretation in Starling, then I think it is incorrect. This latter point was not the subject of significant argument before this Court, and this would be a factor which would tell against the grant of declaratory relief. In Motor Accidents Insurance Board v Watt [2016] TASSC 45, I considered in some detail the principles that guide the exercise of a court's discretion to grant declaratory relief. An important, perhaps determinative, factor in support of the exercise of such discretion is the existence of a real dispute between the parties and utility in respect of the declaration of rights and obligations relating to that dispute. On balance, I am satisfied that those factors arise in this case, and support the exercise of the Court's jurisdiction to grant declaratory relief. In particular, there is sufficient subjective uncertainty expressed by the Director in his affidavit as to the proper interpretation and operation of the relevant provisions, and the answer to the question has real and important implications with respect to the potential grant to the respondent of remissions in respect of her sentences.
63 I would grant relief in the following form:
"It is declared that in respect of each sentence imposed upon the respondent by the Chief Magistrate on 16 August 2017, the Director may grant a maximum remission as follows:
(a) in respect of the sentence of 10 months' imprisonment imposed in relation to complaints numbered 6950/2016, 8064/2016, 8729/2016, 9845/2016, 11204/2016, 11205/2016 and 11209/2016, a maximum remission of three months; (b) in respect of the cumulative sentence of six months' imprisonment imposed in respect of complaint 7089/2017, a maximum remission of two months."
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