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Evans v Job

Evans v Job

Case [2018] TASFC 3 6 August 2018

Sentencing

Statutory Construction

Remedies

Criminal Law

Statutory Interpretation

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[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Evans v Job

Details

AGLC: Evans v Job [2018] TASFC 3
Case: [2018] TASFC 3
Decision Date: 6 August 2018

CaseChat Overview and Summary

Evans (the applicant) sought judicial review of a decision by the respondent, the Director of Public Prosecutions, concerning the calculation of remissions applicable to his sentence. The applicant had been sentenced in Victoria to a term of imprisonment, and subsequently, a further sentence was imposed in Tasmania. The dispute centred on whether the Tasmanian Corrections Regulations 2008, specifically regulation 22, applied to the applicant's Victorian sentence, thereby affecting the total period of imprisonment for remission purposes. The matter was heard in the Supreme Court of Tasmania.

The primary legal issue before the Court was the interpretation of regulation 22 of the Corrections Regulations 2008 (Tas). This regulation defines "total period of imprisonment" for the purposes of calculating remissions. The Court was required to determine whether this definition encompassed sentences imposed in other Australian jurisdictions, or if it was limited to sentences served within Tasmania. The applicant contended that the Tasmanian regulations should apply to his Victorian sentence, thereby entitling him to a greater remission entitlement.

The Court analysed the wording of regulation 22 and the broader legislative context of the Corrections Act 1997 (Tas). It concluded that the definition of "total period of imprisonment" in regulation 22 was intended to apply only to sentences imposed by Tasmanian courts and served within Tasmania. The Court reasoned that to apply the Tasmanian remission scheme to a sentence imposed and served in Victoria would be an impermissible extraterritorial application of Tasmanian law. Therefore, the applicant's Victorian sentence was not to be aggregated with his Tasmanian sentence for the purpose of calculating remissions under Tasmanian law.

The application for judicial review was dismissed.

Orders