Hoare v The Queen

[1989] HCA 33

HIGH COURT OF AUSTRALIA

Mason C.J., Deane, Dawson, Toohey and McHugh JJ.

HOARE v. THE QUEEN

(1989) 167 CLR 348

30 June 1989

Criminal Law (S.A.)

Criminal Law (S.A.)—Sentence—Principles—Court required to have regard to possibility of remission—Whether justification for increase of otherwise appropriate sentence—Criminal Law Consolidation Act 1935 (S.A.), s. 302.

Decision

MASON C.J., DEANE, DAWSON, TOOHEY AND McHUGH JJ. These are applications for special leave to appeal against sentence from decisions of the South Australian Court of Criminal Appeal. While the applicants' respective criminal activities were unrelated, the outstanding ground of appeal is the same in each case. It is that the Court of Criminal Appeal misconstrued and misapplied s.302 of the Criminal Law Consolidation Act 1935 (SA) in that it acted on the basis that the practical effect of that section was to require a dramatic increase in South Australia in the length of terms of imprisonment and non-parole periods under sentences for crimes committed after the commencement of the section in December 1986. The applications for special leave to appeal were argued together and it is convenient to deal with them in a single judgment.

2. The applicant Andrew John Easton ("Easton") was convicted of four counts of armed robbery. He was sentenced by the trial judge to concurrent terms of imprisonment: 5 years on the first count; 7 1/2 years on the second count; 12 years on the third count; and 15 years on the fourth count. His Honour fixed a non-parole period of 11 1/2 years and ordered that the four sentences and the non-parole period run from 25 March 1987, that being the date on which Easton had been taken into custody. On appeal by the Crown against sentence, the Court of Criminal Appeal (King C.J., White and O'Loughlin JJ.) allowed the appeal, set aside the concurrent sentences imposed by the trial judge and substituted the following sentences: 8 years on count one; 8 years on count two (concurrent with the sentence imposed on count one); 12 years on count three (cumulative on the sentences imposed on counts one and two); and 12 years on count four (concurrent with the sentence imposed on count three). The Court of Criminal Appeal fixed a non-parole period of 15 years and ordered that the sentences imposed on counts one and two and the non-parole period run from 25 March 1987. In the result, the Court of Criminal Appeal substituted, for the effective total sentence of 15 years and the non-parole period of 11 1/2 years imposed and fixed by the trial judge, an effective total sentence of 20 years and a non-parole period of 15 years. The crimes covered by counts one and two, in respect of which sentences of 8 years were imposed, were committed before the commencement of s.302. Those covered by counts three and four, in respect of which sentences of 12 years were imposed, were committed after the commencement of the section.

3. The applicant Aleksander Constantine Terry Hoare ("Hoare") was convicted of a single count of armed robbery. He was sentenced by the learned trial judge to imprisonment for 12 years commencing at the expiration of a sentence of imprisonment which he was currently serving and which had more than two years to run. His Honour fixed a non-parole period of 10 years. Hoare appealed, by leave, against sentence to the Court of Criminal Appeal. By majority (Cox and Perry JJ.; White J. dissenting) his appeal against sentence was dismissed.

4. Section 302 was inserted in the Criminal Law Consolidation Act by the Statutes Amendment (Parole) Act 1986 (SA). It was repealed by the Statutes Amendment and Repeal (Sentencing) Act 1988 (SA) as from 1 January 1989 when it was replaced by s.12 of the Criminal Law (Sentencing) Act 1988 (SA). The wording of the last-mentioned section differs from that of s.302. However, the matter was argued before us on the basis that s.302, which applied at the times of Hoare's crime and of Easton's last two crimes and at the times when each was sentenced at first instance and when the appeal of each was disposed of by the Court of Criminal Appeal, is the relevant provision for the purposes of the present applications. It provided:

"A court, in fixing the term of a sentence of

imprisonment or in fixing or extending a non-parole period in respect of a sentence, or sentences, of imprisonment, shall have regard to the fact (where applicable) that the prisoner may be credited, pursuant to Part VII of the Correctional Services Act, 1982, with a maximum of 15 days of remission for each month served in prison."

5. As s.302 indicated, the remissions system contained in Pt.VII of the Correctional Services Act 1982 (SA) allows the remission for good conduct of a sentence of imprisonment up to a maximum of 15 days for each period of a month actually served in prison. When the Correctional Services Act came into operation in 1985, Pt.VII (as amended by the Correctional Services Act Amendment Act 1984 (SA), s.51) replaced a similar provision in Pt.IVB of the Prisons Act 1936 (SA). Not all prisoners are eligible for remission under Pt.VII. Thus, the remissions system does not, for example, apply to a prisoner whose total sentence does not exceed three months, to a prisoner who has been declared to be an habitual criminal or to a person returned to prison after the commencement in December 1983 of the Prisons Act Amendment Act (No.2) 1983 (SA) upon cancellation of parole for breach of parole conditions (s.79(1)). The remissions system is obviously intended to work as an incentive system for the encouragement and reward of good behaviour on the part of eligible prisoners. At the end of each month, the Permanent Head of the Department of Correctional Services is required to consider the behaviour during that month of each prisoner eligible for remissions under Pt.VII. The Permanent Head "may, if he is of the opinion that a prisoner has been of good behaviour, credit him with such number of days of remission, not exceeding 15, as he considers appropriate" (s.79(2)). Where the Permanent Head makes a decision to credit, or not to credit, a prisoner with any days of remission, he shall notify the prisoner, in writing, of his decision and of the reasons for it (s.79(4)). Where a non-parole period has been fixed in respect of a prisoner, the days remitted are, as a practical matter, first credited against that non-parole period since, under the current statutory provisions (Correctional Services Act, Pt.VI s.66(1)), a prisoner is, subject to the fixing and acceptance of parole conditions, entitled to be released "not later than 30 days after the day when the period (he) has served in prison during the non-parole period and the total number of days of remission credited to him during that period ... together equal the non-parole period". Where no non-parole period has been fixed or the prisoner has declined parole by non-acceptance of the conditions, the days remitted will, as a practical matter, be credited against the term of the sentence being served since Pt.VII of the Correctional Services Act provides that, when the total number of days of remission and the period served in prison equal the term, or terms, of imprisonment to which a prisoner has been sentenced, he shall be released (s.80(1)) and that, "(u)pon a prisoner being released from prison pursuant to this Part (i.e. Pt.VII), his sentence, or sentences, of imprisonment shall be deemed to have been wholly satisfied" (s.81). Where, at the end of a month it appears that a prisoner would be entitled to be released before the end of the next month if credited with 15 days of remission in respect of that month, the Permanent Head "shall thereupon credit the prisoner with 15 days of remission" (s.79(5)). Otherwise, a prisoner is credited with the "appropriate" number of days of remission only at the end of the relevant calendar month.

6. There is a somewhat anomalous element of dichotomy between the Correctional Services Act's provisions for the effective crediting of days remitted against a non-parole period, and that Act's provisions for the effective crediting of days remitted against the head sentence. Prima facie, one would expect that days of remission actually credited would be available to remit service of the head sentence regardless of whether they were also credited against the non-parole period. There is, however, no provision of the Act to the effect that, when a person is released on parole, the credit for days already remitted will operate to reduce the term of the head sentence or remain available to be applied against the head sentence if he becomes liable to serve the balance of his sentence by reason of being sentenced to imprisonment for an offence committed during the period of his release on parole (s.75(1)). In Reg. v. Harris (1984) 36 SASR 302, the South Australian Court of Criminal Appeal held that the effect of earlier provisions of the Prisons Act, which closely correspond in relevant respects with the present provisions of the Correctional Services Act which replaced them, was that remissions granted did not operate to reduce the head sentence in a case where a prisoner is released on parole (i.e. released pursuant to a provision comparable with Pt.VI and not Pt.VII). It has not been suggested by either side that the decision in Harris, the correctness of which has not been the subject of argument, is inapplicable to the relevant provisions of the Correctional Services Act (see Flentjar v. Wright (1986) 42 SASR 246, at p 262). The effect of the decision in Harris is that a prisoner who is released on parole obtains no reduction at all in his head sentence by reason of days of remission credited before his release. Since remissions for good behaviour are only available to a person while he is a prisoner serving a sentence of imprisonment, the result is that, in the common case where a prisoner is released on parole and is not returned to prison during the period of parole, the duration of the head sentence will be unaffected by credited days of remission. If a person is returned to prison by reason of being sentenced to imprisonment for an offence committed while on parole, he will be liable to serve the unexpired "balance" of his head sentence "as at the day on which the offence was committed" (s.75(1)). In such a case, the effect of Reg. v. Harris would seem to be that he will obtain no benefit from days of remission credited before his release on parole.

7. The practice of allowing remission for good behaviour of the service of part of a sentence of imprisonment has existed from the earliest times of European settlement in this country. Originally, remission developed out of the Royal prerogative of mercy or clemency, including the power of conditional pardon (cf. Kelleher v. Parole Board (N.S.W.) (1984) 156 CLR 364, at pp 367-368, 371-372, 381-382). The Governor's powers "to pardon all such offenders and to remit all such offences" was exercised in order to set free transported convicts after what was seen as an appropriate period of enforced labour (see Governor Phillip's Commission of 1787 and, as to the power "to remit or shorten" the time or term of transportation, see 30 Geo.III c.47, and Governor Phillip's Letters Patent of 8 November 1790). Traditionally, the existence of a system of remission has, from the point of view of a prisoner, been beneficial in that such a system allows the sentence imposed as appropriate to the gravity of the crime to be remitted or cut short by reason of good behaviour while it is being served. It is well settled as a matter of principle that the existence of a remissions system such as that contained in Pt.VII of the Correctional Services Act is not, of itself, a circumstance justifying an increase in the head sentence. Indeed, that is one rule about which there is almost universal agreement in the often contentious field of sentencing law (see the "established authorities" referred to in Reg. v. Paivinen (1985) 158 CLR 489, at pp 494-495; and, e.g., Halsbury's Laws of England, 4th ed., vol.11: Criminal Law, Evidence and Procedure, par.483; Thomas, Principles of Sentencing, 2nd ed. (1979), pp 48-49; Daunton-Fear, Sentencing in South Australia, (1980), pp 98-99; Emmins, A Practical Approach to Sentencing, (1985), p 128; Fox and Freiberg, Sentencing: State and Federal Law in Victoria, (1985), pp 420-421; Walker, Sentencing: Theory, Law and Practice, (1985), p 198; Hall, Sentencing in New Zealand, (1987), pp 46-47). The reasons underlying that general rule are clear. First, in the case of a system of remissions such as that involved in the present case, a "prisoner has no right to remission, although ... if he behaves himself he may get as much as a third remission" (Reg. v. Maguire and Enos (1956) 40 Cr App R 92, at p 94). That being so, there can be no guarantee that a particular prisoner will in fact obtain the maximum possible or any number of days of remission. Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen (No. 2) (1988) 164 CLR 465, at pp 472, 485-486, 490-491, 496). It would represent a departure from that basic principle if a judge, instead of imposing a sentence within the limits of what represented appropriate or proportionate punishment for the crime, were to "impose a longer sentence merely because the offender may possibly earn remissions for good conduct" (see Reg. v. Paivinen, at p 494). Thirdly, to increase what would otherwise be the appropriate sentence in all the circumstances of the particular offence by the period which the sentencing judge thought would be or might be credited as days of remission would be to negate in advance the real benefit to the prisoner of remissions for good behaviour and thereby reverse the policy underlying the remissions system (see Menz and Royce v. The Queen (1967) SASR 329, at pp 330-331). Indeed, it would be effectively to turn a legislative system of remissions such as that contained in Pt.VII on its head by reading statutory provisions intended to benefit a prisoner by allowing the reduction of the sentence imposed as appropriate to his crime as if they contained an additional clause to the effect that all sentences should be increased by the maximum period of remissions which a prisoner might earn.

8. That is not to say that, in the absence of some statutory provision such as s.302, a sentencing judge could take no account at all of the availability (or unavailability) of remissions in determining the appropriate sentence in all the circumstances of the particular case. There could, for example, be no legitimate objection to account being taken of the fact that remissions are available for good behaviour during service of a sentence but not for good behaviour during time in custody before sentence in determining what (if any) allowance should be made in the head sentence in respect of such time (see, e.g., Reg. v. Town (1987) 30 A Crim R 220, at p 228; Reg. v. Creed (1985) 37 SASR 566, at p 567). There may, indeed, be exceptional circumstances in which a sentencing judge may, consistently with both principle and the policy of the remissions system, be influenced by the likelihood of remissions to reduce a head sentence by reason of some special factor by a lesser period than would have been appropriate if there were no applicable remissions system. If, to take a hypothetical example, special humanitarian and personal considerations justified the reduction of what would otherwise have been an appropriate sentence of twelve months imprisonment to an extent that would enable a foreign prisoner to return to his home after six months, it would border on the absurd for the sentencing judge to be precluded from taking account of possible remissions for good behaviour so as to determine that the appropriate head sentence was nine (rather than six) months. In such a case, account is taken of the likely working of the remissions system not as a factor justifying an increase in the head sentence but for the purpose of assessing the appropriate extent of mitigation in the particular circumstances. In that regard, it should be stressed that the general rule referred to in the preceding paragraph is not that a judge must pay no regard whatsoever in the sentencing process to the availability of remissions for good behaviour while a prisoner is in custody. The general rule is that it is not permissible for a sentencing judge to treat the likelihood of remissions for good behaviour as itself constituting a ground for increasing what would otherwise be the appropriate head sentence.

9. Somewhat different considerations govern the extent to which a sentencing judge may be influenced by the operation of a remissions system in fixing a non-parole period. The length of a non-parole period is necessarily confined within the period of the head sentence and there is no question of transgressing the basic principle that a term of imprisonment cannot properly exceed that which is justified as appropriate or proportionate punishment for the objective offence. Both a remissions system and a parole system are ordinarily predicated upon the functioning of ordinary sentencing procedures and apply to excuse or release the prisoner from service of the full term of the sentence which is appropriate to his crime. There is no reason in principle why a sentencing judge should be precluded from taking account of the likely effect of remissions against the head sentence in fixing a non-parole period. As a practical matter, the fixing of an appropriate non-parole period may, in some circumstances, require that regard be paid to the likely effect of remissions upon the head sentence. Thus, during the period in which the South Australian remissions system operated to reduce the time required to be served under the head sentence but did not affect the non-parole period, the South Australian Court of Criminal Appeal recognized that it was necessary that a sentencing judge pay regard, when fixing a non-parole period, to the likely effect of remissions upon the head sentence to avoid rendering the parole system nugatory by fixing a non-parole period which extended beyond the earlier unconditional release of the prisoner (see Reg. v. Eckardt (1971) 1 SASR 347, at pp 349-350; and cf. Reg. v. Paivinen, at p 495). In such a case, the existence of the remissions system could operate as a factor militating in favour of a shorter non-parole period than that which might otherwise be thought appropriate.

10. In Reg. v. Brennan (1984) 36 SASR 78, which was decided after the South Australian remissions system was altered by the Prisons Act Amendment Act (No. 2) 1983 to allow the crediting of remissions to reduce a non-parole period, the Court of Criminal Appeal addressed the general question of the extent to which a sentencing judge could properly be influenced, in fixing a non-parole period, by the likely operation of the remissions system. In the course of his judgment, King C.J. (with whose judgment Walters and Mohr JJ. agreed) said (at p 80):
"There is no longer any obstacle to the application
of the principle laid down in Reg. v. Maguire and Enos and in Menz and Royce v. The Queen in determining the non-parole period as well as the head sentence. To approach the fixation of a non-parole period by first determining the period to be spent in prison and by then adding fifty per cent or some other proportion to counteract the reduction of the non-parole period by remissions is wrong in principle. It offends against the principle of sentencing laid down in the above cases; it assumes that the law as to good conduct remissions will remain the same for the duration of the sentence; it assumes that the prisoner will receive the maximum remissions for good conduct; it assumes that the conditions of parole fixed by the Board will be acceptable to the prisoner. None of those assumptions is justified. The proper approach under the new provisions, is for the sentencing judge to determine the proportion of the sentence which is to be spent in prison and that which is to be spent on parole. He should fix the non-parole period accordingly, without regard to any reductions which might result from remissions credited to the prisoner."

11. The considerations to which King C.J. referred in the above passage plainly justify the conclusion which his Honour reached that, in the absence of statutory direction or mandate, it would be quite "wrong in principle" to "approach the fixation of a non-parole period by first determining the period to be spent in prison and by then adding fifty per cent or some other proportion to counteract the reduction of the non-parole period by remissions". Such an approach would be contrary to the legislative policy of allowing remissions against the non-parole period as a benefit and reward earned by good behaviour during custody. It would be quite unfair to the prisoner in that, as King C.J. pointed out, it makes unjustified assumptions to his detriment. On the other hand, King C.J.'s ultimate conclusion that the non-parole period should be fixed "without regard to" any remissions would, if it were construed as meaning that a sentencing judge can pay no regard at all to the working of the remissions system and the availability of possible remissions, go too far. As has been seen, there are circumstances in which it will be legitimate for a sentencing judge to be influenced by the availability of possible remissions even in determining the appropriate head sentence. Notwithstanding the legislative changes making remissions available to reduce the non-parole period, there are still circumstances in which it is plainly necessary for a trial judge to have regard to the availability of possible remissions in fixing the non-parole period. We turn now to explain why that is so.

12. In Reg. v. Brennan, the Court of Criminal Appeal adopted (at p 79) King C.J.'s comments in Reg. v. Tio and Lee (1984) 35 SASR 146 as to the general principles by reference to which non-parole periods should be set. In those comments, his Honour had explained the procedure which he thought appropriate for a sentencing judge to follow in determining the head sentence and non-parole period in circumstances where possible remissions would apply to the non-parole period. His Honour said (at pp 148-149):

"...the new legislation changes the system of remissions for good conduct. Before the new legislation, the good conduct remissions provided for by the Regulations made under the Prisons Act applied to the head sentence only and did not operate to reduce the non-parole period. The court, in fixing the non-parole period, was therefore driven to make an assumption as to the extent of the remissions which the prisoner would receive. This Court laid down that a sentencing judge should assume that the maximum available good conduct remissions would be received and should, in the ordinary case, fix a non-parole period which would allow proper scope, according to the evident intention of parliament, for the action of the Parole Board. The Court is now relieved of the necessity of engaging in this kind of guesswork. The effect of the new legislation is to apply remissions to the non-parole period also. The sentencing judge can fix the non-parole period upon the basis of the proportion of the sentence which is to be spent in prison and the proportion which is to be spent on parole, in the knowledge that any remissions will operate to reduce the non-parole period as well as the head sentence. In order to frame a just and proper sentence, it is sufficient to know that whatever remissions lawfully apply from time to time will apply to the non-parole period no less than to the head sentence. The judge's task is to determine the head sentence and the non-parole period upon the basis of the proportion which the one should have to the other. The actual duration of each will depend upon the extent of the remissions for good behaviour which are granted to the prisoner."

13. As King C.J. pointed out in Reg. v. Harris (at p 305), the above comments did not take account of the absence of any provision allowing for the crediting of remissions against the head sentence in the case of a person who is released on parole. Equally important, and quite apart from the absence of such a provision, the fact that remissions are fully credited against the non-parole period means that a sentencing judge must still take account of the working of the remissions system if he is to determine the actual proportion between time spent in custody and time on parole since the crediting of the full period of remissions against the non-parole period will progressively distort the initial proportion between the non-parole period and the head sentence. If, for example, a sentencing judge wished to determine that the proportion of the sentence to be actually spent in custody be one half, he would, even if remissions were credited against both non-parole period and head sentence, frustrate that intention if he failed to take account of the possible effect of remissions and fixed a non-parole period of one half of the head sentence. Thus, the effect of maximum remissions in the context of a non-parole period of six years and a head sentence of twelve years would be (even if, contrary to Reg. v. Harris, remissions could be effectively credited against both non-parole period and head sentence) that approximately four years would be spent in custody and approximately six years on parole. In the light of Reg. v. Harris, the effect of maximum remissions in such a case would be that four years would be spent in custody and eight years on parole.

14. The case of Flentjar v. Wright provided a good practical example of the need to qualify the statement in Reg. v. Brennan that a sentencing judge "should fix the non-parole period ... without regard to any reductions which might result from remissions". That was a case in which the Court of Criminal Appeal reached the conclusion that a non-parole period allowing a significant reduction of the period actually served in custody could not be justified but that it was desirable that the assistance of the parole system be available to the prisoner at the time of his eventual release. Johnston J., in a judgment with which White and O'Loughlin JJ. agreed, paid detailed regard (at pp 262-263) to the operation of the remissions system and the possible remissions for good behaviour which would be available to the prisoner to reduce the non-parole period, in determining the length of the appropriate non-parole period. His Honour adverted to the above-mentioned statement of King C.J. in Reg. v. Brennan. He construed that statement as precluding the increase of the head sentence and non-parole period to negate the benefit of remissions but not as precluding any regard at all being had in the sentencing process to possible remissions for good behaviour. As Johnston J. pointed out (at p 263):

"But it has also been said on numerous occasions that in respect of some other matters, one must out of necessity refer to the impact of remissions; for example ... when considering the question of what will be the practical effect of a given non-parole order against a given head sentence."

15. The Court of Appeal's judgment in Flentjar v. Wright was handed down on 30 September 1986. In the preceding month, the Statutes Amendment (Parole) Bill (inserting s.302 in the Criminal Law Consolidation Act) had been introduced to the South Australian Parliament. It was passed by the House of Assembly on 24 September 1986 and by the Legislative Council on 5 November 1986. It was assented to on 20 November 1986 and was proclaimed to commence on 8 December 1986. The name "Statutes Amendment (Parole) Act" and the context provided by the Act's other provisions which are concerned with aspects of the parole system suggest that the section was primarily concerned to ensure that a sentencing judge was not precluded by what had been said in Reg. v. Brennan from having any regard to the operation of the remissions system in fixing the non-parole period. If that be so, Flentjar v. Wright did much to remove the need for the section between the time of its introduction and the time of its enactment.

16. In the course of argument of the present applications, counsel for the applicants referred the Court to the second reading speeches in the House of Assembly of the Minister of Correctional Services and of the Minister who introduced the Bill containing s.302 (the Statutes Amendment (Parole) Bill) on his behalf. This was done without objection by the Solicitor-General who appeared for the Crown. Nor did the Solicitor-General seek to argue that the Court was not entitled to pay regard to those ministerial statements for the purpose of identifying "the mischief to which the Act was directed" (cf. Wacando v. The Commonwealth (1981) 148 CLR 1, at pp 25-26; Federal Commissioner of Taxation v. Whitfords Beach Pty. Ltd. (1982) 150 CLR 355, at pp 373-375; Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed. (1988), pars. 3.4-3.6) or "the purpose or object of the Act (whether or not ... expressly stated in the Act)" to which attention is directed by s.22(1) of the Acts Interpretation Act 1915 (SA) (cf. Sola Optical Aust. Pty. Ltd. v. Mills (1987) 46 SASR 364, at p 380; and note the absence of a South Australian statutory provision corresponding to s.15AB(2)(f) of the Acts Interpretation Act 1901 (Cth)). In the absence of any such objection, we are prepared to assume for the purposes of the present case that the Court is entitled to refer to those ministerial statements for one or other of those limited purposes (i.e. for the identification of the relevant "mischief" or (under s.22) "purpose"). Such reference provides support for the view that the mischief to which s.302 was directed or the purpose which it was intended to serve was not a perceived need for a dramatic overnight increase in prison sentences in South Australia but the need to remove doubts about whether a court was precluded from paying any regard at all to the likely effect of remissions in fixing a non-parole period. In particular, the Minister of Correctional Services stressed the declaratory nature of s.302. The section, he said, "spelt out to the court what it can already do so that it is perfectly clear." He added that "(w)hile the courts could always (have regard, in the sentencing process, to the possible operation of the remissions system) we felt it necessary to put it into the Act and spell out clearly to the courts that they need to take that into consideration" (House of Assembly Parliamentary Debates (Hansard), 24 September 1986, at p 1175). As will be seen (below), the Minister of Correctional Services was also at pains to emphasise the fact that it would be quite wrong to assume that, under the current system, even a majority of persons would obtain maximum remissions.

17. The South Australian Court of Criminal Appeal first examined the effect of s.302 in Reg. v. Dube and Knowles (1987) 46 SASR 118. The offences in that case had been committed before the date of commencement of s.302 (8 December 1986). The court held that the section should be construed as applying only to offences committed on or after that date and was therefore inapplicable to the offences in the cases before it. However, in the course of deciding that it should not accede to a submission by the Crown that there should be a substantial increase in the level of penalties for the crime of armed robbery by reason of the increased prevalence of that crime in South Australia, the court found it necessary to deal with the effect of the section in the cases to which it applied. It construed the section as requiring a "significant" or "quite dramatic" increase in the level of sentences for crimes committed on or after 8 December 1986. In the course of his judgment (in which Bollen and von Doussa JJ. concurred), King C.J. said (at pp 121-122):

"The extent of the adjustment must be a matter

of judgment in each case. What the judge must have regard to is that a prisoner may be credited with one-third remissions. Clearly the judge is not required or entitled to consider whether the individual prisoner is likely to behave well in prison and thereby earn the remissions. The mandate is to have regard to the objective existence of the remission provisions and their potential bearing upon the time which the prisoner will spend in prison. It is not certain, of course, that any particular prisoner will receive any particular period of remission. Common sense and common experience in these Courts, however, combine to indicate that in most cases the maximum or very nearly the maximum period of remissions will be credited. What I have said above is, I think, sufficient

to indicate that the effect of the operation of the new section will be to increase the level of sentences significantly. As there is no certainty about the period of remission which any particular prisoner will earn, the judge is not obliged, in my opinion, to adjust a sentence which he would otherwise have imposed in any strictly mathematical fashion. Nevertheless the reality is that if it is desired that a prisoner spend six years in prison before parole, regard for the remission provisions is likely to lead to a non-parole period approaching nine years. The same considerations apply to a head sentence. It can be seen, therefore, that the effect of the new section on the level of sentencing will be quite dramatic and could in some cases result in as much as a fifty per cent increase in the sentence which would otherwise be awarded."

At the end of his judgment, the Chief Justice (at p 124) spelt out the effect of what had been said about s.302:

"I think that it is desirable that the warning which is implicit in what I have said above should be made explicit. Crimes committed on or after 8 December 1986 will attract substantially heavier sentences than hitherto by reason of the removal of the legal fetters which previously existed. Sentences, especially for serious crimes, could in some instances increase by as much as fifty per cent."

18. In subsequent cases, the approach seems to have been adopted in South Australia by both sentencing judges and the Court of Criminal Appeal that the prima facie effect (i.e. subject to adjustments to meet the particular circumstances of the individual case) of s.302 is to increase the general level of head sentences for serious crimes committed on or after 8 December 1986 by fifty per cent over the levels applicable to crimes committed before that date. Thus, in upholding the Crown's appeal in the case of Easton which is now before this Court, White J. (with whom King C.J. and O'Loughlin J. agreed) clearly accepted a submission of the Solicitor-General which his Honour identified as being
"that a sentence of imprisonment of about 8 years
was appropriate for a pre-December 1986 armed
robbery by a person with a prior record of serious violent offending and 12 years for a similar offence (and offender) after that date. He (i.e. the Solicitor-General) acknowledged that there must be adjustments up and down. Here, an adjustment up was necessary because four hold-ups were involved while an adjustment down was necessary because a toy pistol was used."

It is clear that a similar approach was adopted by the Court of Criminal Appeal in upholding the sentence of twelve years imprisonment imposed upon the applicant Hoare.

19. The judgment in Reg. v. Dube and Knowles does not really seek to explain why a direction to "have regard to" the operation of a remissions system should be construed as having the effect of requiring an increase of up to fifty per cent in head sentences for serious criminal offences in South Australia. As has been seen, the basis of the remissions system is that the sentence imposed by a sentencing judge should be reduced to the benefit of the prisoner by the period of any remissions earned by good behaviour while in custody. To increase the sentence of imprisonment in order effectively to negate the benefit of such remissions is to frustrate or defeat, rather than "have regard to", the operation of that remissions system. As Bray C.J., Travers and Mitchell JJ. pointed out in Menz and Royce v. The Queen (at pp 330-331):

"It is apparent that the policy (of the legislation establishing the remissions system) would be defeated if the one-third remission were in effect to be added on by the Court to the proper sentence for the crime. That policy ... demands that normal sentences should be reduced by one-third, not that the normal sentence should be one only to be reached after deduction of the one-third."

20. Nor does the judgment in Reg. v. Dube and Knowles contain any reference to the basic principle of sentencing law that a sentence of imprisonment should never exceed what represents appropriate or proportionate punishment for the objective offence. There is nothing in s.302 which can properly be seen as a legislative direction to a sentencing judge to disregard so fundamental a principle and, in effect, to impose a much harsher sentence than is appropriate or proportionate to the crime in order to negate any benefit to a prisoner which may result from some administrative officer exercising the discretionary power to remit actual service of part of the sentence imposed. To the contrary, the legislative direction that regard be paid to possible remissions indirectly assumes the continued existence of the appropriate or proportionate sentence upon which the operation of the remissions system is predicated.

21. Considerations of fairness also militate strongly against treating s.302 as requiring a sentencing judge to increase the appropriate sentence by a period which will negate the effect of any remissions. Thus, it is a matter of conjecture whether a particular prisoner will, as a result of the exercise of an administrative discretion, be credited with all or even most of the possible days of remission (see, e.g., Menz and Royce v. The Queen, at p 331; Reg. v. Brennan, at p 80). In Reg. v. Dube and Knowles, King C.J. stated that "in most cases the maximum or very nearly the maximum period of remissions will be credited". Nonetheless, it would seem inevitable that a significant number of persons will not obtain the benefit of anything like the maximum number of days of remission. In that regard, the material before this Court records that the Minister of Correctional Services informed the House of Assembly in the course of the second reading debate on s.302 (House of Assembly Parliamentary Debates (Hansard), 24 September 1986, p 1175) that, since 1983 when the system was "changed" so "that the remissions had to be earned and given by the management of the institution",

"probably for the majority of prisoners, the full remission is not given. An enormous amount of remission is not given and that is how it should be."

Moreover, to increase a head sentence by fifty per cent in order to negate the benefit of possible remissions would produce a quite unfair and capricious situation in that the effect of the decision in Reg. v. Harris is that the head sentence will not in fact be reduced by remissions in the ordinary case where a prisoner is released on parole. The result would be that a prisoner in such a case would not only be deprived in advance of the true benefit of any remissions which he might earn by good behaviour but would be positively disadvantaged by the existence of the remissions system in that a consequence of the increase in his head sentence would be an incidental and undeserved (and presumably undesired) dramatic increase in the period during which he is subjected to the constraints upon liberty and the potential consequences of parole. If, for example, what would otherwise be a head sentence of ten years and a non-parole period of six years was increased (pursuant to the Court of Criminal Appeal's construction of s.302) to fifteen years and nine years, the result would be that, if the prisoner obtained the maximum remissions and was released on parole after approximately six years, his head sentence would continue to run for the whole of the outstanding period of approximately nine years. In the result the prisoner's sentence does not approximate a sentence of ten years with a six year non-parole period without remissions; the prisoner will be subject to parole for an additional three years. What would otherwise have been a parole period of six years would be increased by fifty per cent.

22. In the light of what has been said above, the conclusion seems to us to be unavoidable that s.302 should not be construed in the manner in which the South Australian Court of Criminal Appeal has construed it. The statutory directive to a court to "have regard to" the possible operation of the remissions system in fixing the term of a sentence of imprisonment or in fixing or extending a non-parole period should not be construed as requiring a court to disregard and defeat the policy of that remissions system. Nor should it be construed as evincing a legislative intent to overthrow the entrenched sentencing principle that the sentence pronounced should not exceed what is appropriate or proportionate to the gravity of the offence. All that the section required was that a sentencing judge "have regard", in determining sentence or in fixing a non-parole period, "to the fact (where applicable)" that a prisoner may earn remissions up to the prescribed maximum by good behaviour while in custody. Of itself, that fact will not provide any basis for increasing what would otherwise be seen as the appropriate or proportionate head sentence. That fact may, in exceptional circumstances, tend to reduce the weight to be given to particular mitigating circumstances. It will, as Johnston J. pointed out in Flentjar v. Wright, necessarily be relevant when considering the question of the practical effect of a given non-parole order against a given head sentence. Even in the case of the non-parole period, however, s.302's direction that a court "have regard to" the possible operation of the remissions system cannot properly be construed as a directive to counteract or outflank the policy that remissions actually earned for good behaviour should reduce the period fixed as the appropriate non-parole period.

23. It follows that, in each case, special leave to appeal should be granted, the appeal should be allowed and the order or orders of the Court of Criminal Appeal should be set aside. In the case of Hoare, the time for applying for special leave to appeal should be extended. Since it is apparent from the Court of Criminal Appeal's judgment in Reg. v. Dube and Knowles that, were it not for their Honours' construction of s.302 in that case, a general increase in the level of sentences for armed robbery may well have been thought appropriate, the matters should be remitted to the Court of Criminal Appeal so that that court can consider what orders should be made on the respective appeals against sentence, including Easton's appeal against the sentences imposed in respect of his two pre-s.302 crimes. Pending the making of any such further orders, the applicants will remain in custody serving the sentences imposed by the sentencing judge.

24. There are two further matters which should be mentioned. The first is that Easton also sought special leave to appeal from the decision of the Court of Criminal Appeal dismissing an appeal against his conviction. At the conclusion of his counsel's argument the Court indicated the reasons why special leave, if granted, would be confined to an appeal against sentence alone. It is unnecessary to restate those reasons.

25. The other matter which should be mentioned is that, as has been said, s.302 was replaced, as from 1 January 1989, by s.12 of the Criminal Law (Sentencing) Act 1988. The wording of the present s.12 ("must have regard to any remission of sentence to which the prisoner may become entitled") is stronger that that used in s.302. Like s.302, however, all that is required is that "regard" be had to the possible operation of the remissions system. While the effect of s.12 was not argued in the present case, it would seem desirable that we indicate that the conclusions which we have expressed in relation to the effect of s.302 would appear to be applicable with respect to s.12.

Orders

ORDER IN MATTER No. A36 of 1988

Application for an extension of time in which to seek special leave to appeal granted.

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of South Australia dismissing the appeal to that Court.

Remit the matter to the Court of Criminal Appeal of South Australia for determination in accordance with the judgment of this Court.

Order that the applicant remain in custody serving the sentence imposed by the trial judge pending the making of further orders by the Court of Criminal Appeal of South Australia.
ORDER IN MATTER No. A22 of 1988

Application for special leave to appeal against sentence granted.

Appeal allowed.

Set aside the orders of the Court of Criminal Appeal of South Australia allowing the appeal to that Court against sentence.

Remit the matter to the Court of Criminal Appeal of South Australia for determination in accordance with the judgment of this Court.

Order that the applicant remain in custody serving the sentence imposed by the trial judge pending the making of further orders by the Court of Criminal Appeal of South Australia.

Application for special leave to appeal against conviction refused.