Hoare v The Queen; Easton v The Queen
[1989] HCATrans 83
IN THE HIGH COURT OF AUSTRALIA Office of the Registry
Adelaide No A36 of 1988 B e t w e e n -
ALEKSANDER CONSTANTINE TERRY HOARE
Applicant
and
THE QUEEN
Respondent
Office of the Registry
Adelaide No A22 of 1988 B e t w e e n -
ANDREW JOHN EASTON
Applicant
and
THE QUEEN
Respondent
Applications for special
leave to appeal
MASON CJ
Hoare DEANE J
DAWSON J
TOOHEY JMcHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 13 APRIL 1989, AT 10.16 AM
Copyright in the High Court of Australia
C2Tl/l/VH 1 13/4/89 MR T.A. GAME: If the Court pleases, I appear in both
applications, together with my learned friend,
MR P.J.D. HAMILL. (instructed by Sykes .Bidstrup)
MR J.J. DOYLE, QC, Solicitor-General for the State of South
Australia: If the Court pleases, in both matters I
appear with my learned friend, MISS A.M. VANSTONE,
for the respondent. (instructed by the Crown Solicitorfor South Australia)
MASON CJ: Mr Game. MR GAME: If Your Honour pleases, I understand that the Court will hear argument in relation to the sentence matter in
HOARE first.
MASON CJ: We are in the hands of counsel, but the sentence
question is connnon to both the applications, is it not?
MR GAME: Yes. I would prefer to present the argument in that order, if that could be - - -
MASON CJ: Yes, and I take it that the argument that you are
presenting in the HOARE case on sentence is an
argument that would cover the same question in EASTON.
MR GAME: The argument is precisely the same. MASON CJ: Yes.
MR GAME: I hand to the Court my outline in HOARE. Perhaps if I hand the Court my outline in EASTON's sentence. which is
precisely the same bar a short passage which identifies
the particular sentencing exercise in that case.
MASON CJ: Yes.
MR GAME: The learned Solicitor-General has prepared a guide to the legislation; perhaps if I could hand that up.
The principal piece of legislation is the CORRECTIONAL
SERVICES ACT. The PRISONS ACT has been repealed but was effective until August 1985, so the principal piece of legislation to which I will be referring is the CORRECTIONAL SERVICES ACT, but most of the cases deal with the relevant provisions under the PRISONS ACT
before they were taken across to the CORRECTIONALSERVICES ACT.
TOOHEY~ Mr Game, I know you say that the same question of
sentencing arises in both cases, but in relation to
HOARE, it is not clear to me at the moment just how far
section 302 played any real part in the approach taken
by the Court of Criminal Appeal as opposed to just
some general review of the sentence that had been imposed upon the applicant; no doubt you will take us
to that.
C2Tl/2/VH 2 13/4/89 Hoare MR GAME: Yes, Your Honour. The leading judgment in the case of HOARE was the judgment of Mr Justice Perry
and he referred to his own judgment in the case
of KING and in the case of KING he justified
the increase of a tariff from eight years for
sentences of these kind to a tariff of 12 yearsfor offences of these kind on the basis of
section 302 of the CRIMINAL LAW CONSOLIDATION
ACT. So that the only basis for the sentence in HOARE, the only justification, can be found
in section 302 of the CRIMINAL LAW CONSOLIDATION
ACT.
Indeed, Hoare's sentence, leaving aside
the balance of his parole which was some 3 years;
two months '.and .18 days, the sentence he received,
taking into account the time he had been in
custody was well in excess of 13 years; so~that
if eight years was the standard tariff for an
offence of this kind - this was an offence committed
with an axe in a pizza bar - if we accept forthe moment that eight years was the standard
tariff before December 1986, which is the date
from which the section 302 was effective, then
we are talking about a sentence in excess of
13 years in this case and the only justificationfor that can be found in section 302 of the
CRIMINAL LAW CONSOLIDATION ACT and the only
justification that Mr Justice Perry sought to
put forward for that in KING's case, which he
relies upon in HOARE's, is the increase broughtabout by section 302.
Moreover, he specifically referred and
relied upon the decision in EASTON's case as
the basis for that and in EASTON's case the
Solicitor-General submitted that there should
be an increase from 8 years to 12 years on the
basis of section 302 for offences of this kind
and the court acceded to that proposition, so
that by the time we come to HOARE's case and
KING's case it is accepted by the court that
the tariff for these offences has risen by 50 per cent by reason and by reason only of
the operation of section 302 of the CRIMINAL
LAW CONSOLIDATION ACT.
So, in short, that is the result. I will
be taking the Court to the judgments and what
the judgments mean in terms of sentencing and
I will take the Court to the particular passages
that I rely on in due course.
C2T2/l/ND 3 13/4/89 Hoare
MR GAME (continuing): An affidavit of Michael Je~ome Sykes dated 3 April 1989 in both HOARE and EASTON has been
filed and that affidavit in substance sets out the
argument that we propose to put in relation to
section 302 and the outline which I have handed up
ties in fairly closely with the particular arguments
referred to therein. Does the Court have copies?
MASON CJ: Yes, the Court has copies of that affidavit. Whereabouts do we find section 302 in convenient form?
McHUGH J: It is at 263 in the appeal book, in EASTON's appeal book.
MR GAME: It is actually in the first affidavit of Michael Jerome Sykes in HOARE and that is to be found at page 55 of the HOARE application book.
DAWSON J: Which Act was it that introduced section 302 in its present form?
MR GAME: The CRIMINAL LAW CONSOLIDATION ACT AMENDMENT ACT which was effective from-8 December 1986. It is No 69
of 1986.
(Continued on page 5)
C2T3/l/MB 4 13/4/89 Hoare
MR GAME (continuing): As from 1 January 1989, section 302 has its analogue in section 12 of the CRIMINAL LAW
(SENTENCING) ACT 1988.
MASON CJ: Where do we find the most comprehensive discussion of section 302 in its impact as seen by the Supreme
Court of South Australia on sentencing?
MR GAME: The most comprehensive discussion is in a case of DUBE AND KNOWLES, (1987) 46 SASR 118. MASON CJ: Now, is that the most convenient place in which to pick up what the supreme court has said about the
impact of the section?
MR GAME: Yes, except that the cases which are before this Court are the cases in which the principle, in effect, has been worked out to the extent that it has become clear that the Court has regarded it as requiring the
Court to add 50 per cent to sentences. That is notmade plain in DUBE AND KNOWLES but what is made plain is that there will be substantial increases in sentencing brought about by the operation of section 302. Perhaps if I could take the Court
through the decision in DUBE AND KNOWLES?MASON CJ: Yes.
MR GAME: Now, in that case, the Attorney-General appealed against two sentences upon the basis that the deterrent factor in armed robbery offences was such that the penalties should be raised and at the top of page 120 there is a discussion of the fact that
there had been a considerable increase in the
prevalence of armed robberies in South Australia.
(Continued on page 6)
C2T4/l/SH 5 13/4/89 Hoare
MR GAME (continuing): The learned Chief Justice at about
point 2 observed that he thought:
that it must be conceded that there
is no proven correlation between the
level of punishment and the
incidence of crime -but he went on in the latter part of the paragraph to say that none the less the increased prevalence
should call for an increase in sentence,
notwithstanding the absence of such provendeterrence, but he went on to say that he would
be inclined to raise the penalties for armed
robberies were it not for the effect of section 302.
He said:
That amendment came into operation on
8 December 1986. Prior to the
passing of that amending Act, the court
was bound by the rule of law that a
sentencing judge was not entitled to
have regard to remissions of the sentence
which the offender might receive for good
behaviour in prison.
In due course I will seek to demonstrate that the
court was having regard to remissions in all ways
except for a way which would increase non-parole
periods or head sentences specifically, that is to
say in a frank sense, although it may be that
non-parole periods at least were increased by
having regard in some instances, particularly inthe instance of cases calling for long non-parole
periods, that they were increased by reference
to remissions and I will return to that argument
in due course. He continued: The sentencing judge was obliged to assume
that the prisoner would serve in prison the
whole of the non-parole period fixed by the
judge and, if he did not accept the conditions of parole, would serve the whole of the head sentence. This was, of course,
a fiction. In the vast majority of cases,prisoners are of good behaviour in prison and gain the whole of the permitted remissions, that is to say one-third of the sentence or non-parole period as the case
may be. The judge would impose the sentenceand non-parole period which he considered to
be fair and just punishment for the crime
committed, but the prisoner would be released,in most cases, after serving only two-thirds
of that sentence. The effect of the amendment is to enable, indeed to require, the judge,
C2T5/l/HS 6 13/4/89 Hoare 1n passing sentence, to have regard
to the remission provisions. I shall discuss shortly the way in which·
this new provision might be expected
to operate, but for present purposes,
it is sufficient to say that it will
obviously have the effect of
substantially increasing the level
of sentences.
(Continued on page 8)
C2T5/2/HS 7 13/4/89 Hoare
MR GAME (continuing): He proceeded to consider whether or not the Act had a retrosnective effect and he concluded that:
it was not retrospectiv~, that it was effective
from 8 December 1986. I take it up about two-thirds of the way down page 121.
The new section directs the judge to "have regard to" the remission provisions. In certain contexts, a direction to "have regard to" specified matters means no more than the court is required to
consider them without being bound to act upon
them.
I think, and in due course I will be putting an
argument to the Court, that "have regard to", those
words cannot be raised to a higher level than they
can reasonably carry and "having regard to" may require
the Court to consider but the discretion always remains
in the Court as to what they will do once they have
considered the operation of remissions upon thesentence.
MASON CJ: But does not consistency in sentence require you to have, as it were, consistent regard to so that
you take it into account all the time. If it ispurely discretionary you are going to get inconsistency
in sentencing, are you not?
MR GAME: Well, it depends how you go about having regard to. My argument involves no argument against consistency
in sentencing. My argument in this respect is about what the words "have regard to" mean and what
construction should be placed upon "have regard to".
I will be seeking to show that there are other
sensible constructions which can be placed upon that and I was seeking to put a more fundamental argument
that "having regard to" in the way in which the court
has had regard to has a serious impact upon the
integrity of judicial power. Now, continuing: Prior to the amending Act, as I pointed out, the
judge was not entitled to have regard to the remission provisions.
Well, the court was having regard to remission provisions
in certain ways but they were not having regard to
remission provisions in a way that overtly
amounted to an increase, certainly not in head
sentences but possibly in non-parole periods.
(Continued on page 9)
C2T6/l/MB 8 13/4/89 Hoare MR GAME (continuing): . Now he is directed to do so. It seems to
me that he can only have regard to those
provisions, by adjusting the sentence which
he would otherwise have imposed, by reason
of them. I think that the section mandates into account when determining the duration the judge to take the remission provisions of the head sentence and the non-parole
period.Now, it will be part of my argument that a court
in no way can have regard to remissions in fixing
the head sentence because of a decision of theCourt of Criminal Appeal in HARRIS' case which
confirms that remissions onLy relate to time served
so that, if a person had a non-parole period of eight
years, say, and a head sentence of 12, well, that
person would be ordinarily released in five and a
third years, well, that person will be on parole for
the balance of - that is to say, for 12 years and
remissions have no relationship to what happens
when the person is released on parole so that they
do not affect pro tanto the head sentence; they
only affect the day on which the person is released
except in the event that the person is refused -parole is automatic in South Australia, subject to
acceptance by the prisoner of the conditions but, if there is no parole granted, then the sentence
will run and, in that instance, when the prisoner
has reached two-thirds of the way through his
sentence, provided remissions are granted, then
the prisoner will be released.
DAWSON J: You say two-thirds? Is that the equivalent of 15 days a month?
MR GAME: That is the equivalent of 15 days per month. Perhaps if I could just - - - DAWSON J: I find it hard to see; 15 days sounds like half a
month?
MR GAME: No, but if you have - - - DEANE J: A month served.
MR GAME: If you serve a month and then you get 15 days, then that is two-thirds.
DAWSON J: I see, yes. I follow. DEANE J: Yes.
MR GAME: If you had ten days a month, then that would be a quarter. DAWSON J: Yes, I see.
C2T7/l/SH 9 13 / 4/ 89 Hoare MR GAME: If, for example, we took the 12 years and eight
years example and increased the sentence in the way
in which we say the court has done so, then you would
end-by 50 per cent and you would have, say 18 with
12. Well, if the prisoner was released after eight years, then you would have a prisoner on parole for
10 years whereas the initial intention was to have a
person - that is to say, having regard to remissions -
the initial intention was to have a parole period of
four years, the result produces an increase in parole
of something in the order of 250 per cent by operationof adding 50 per cent to the sentence.
McHUGH J: But is that not overcome by the direction in section 302 that you also have regard to this
remission in fixing the parole periods? So, it is
obviously going to mean that there will be a different
approach to the question of parole, will there not?
MR GAME: Well, you could not possibly increase the parole
period by more than 50 per cent.
McHUGH J: Well, you may have to reduce it.
MR GAME: You may have to reduce it. In fact, you may have to reduce the head sentence to avoid a person having too
long a period on parole but the approach that the
9ourt has taken is to totally overlook the wholeoperation of the parole system.
DAWSON J: Well, that is the only way you can do it, is is not,
by adjusting the head sentence to achieve what you
say ought to be - - -
MR GAME: You should have to adjust the head sentence down, not up. DAWSON J: Yes, but you take the remissions into account in
fixing the non-parole period?
MR GAME: Yes. DAWSON J: Yes. MR GAME: Now, just continuing: 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 therebyearn the remissions.
C2T4/2/SH 10 13/4/89 Hoard
MR GAME (continuing):
The mandate is to have regard to the objective
existence of the remission provisiorrs and
their potential bearing upon the time whichthe prisoner will spend in prison. It is not
certain, of course, that any particular
prisoner will receive any particular period
of remission.
Well, adding 50 per cent makes an assumption,
of course, that a prisoner will, on a purely
mathematical basis,get all of the remissions to
which that prisoner is entitled. A decision to
which I will be referring in due course, namely,
BRENNAN's case, which is a decision of the Court
of Criminal Appeal, firmly establishes the
proposition that that is bad sentencing practice.
Continuing at the top of page 122:
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, thejudge 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 remissionprovisions is likely to lead to a non-parole
period approaching n:ine years. The same considerations apply to a head sentence.
Well, for the reasons I have just explained, the
same considerations cannot apply to the head sentence
in that particular way:
It can be seen, therefore, that the effect
of the new section on the level of
sentencing will be quite dramatic and could
increase in the sentence which would in sorre cases in as much as a fifty per cent otherwise be awarded. Then the learned Chief Justice continues to consider
whether or not in those circumstances it would be
wise to increase the sentence for deterrent purposes
and it is an important part of my argument that the
increase is brought about by no other factor than
the operation of section 302 and, specifically, the
deterrent factor was disclaimed as a factor, so that
part of my argument will be that there are no
sentencing reasons for increasing the sentences. section-302.
C2T8/l/VH 11 13/4/89 Hoare
DEANE J: What would be the figure for the head sentence to produce a result that the prisoner would· spend
six years in prison, allowing for remissions on
time served and the ordinary reductions?
MR GAME: What would be the head sentence or what would be the non-parole period?
DEANE J: The head sentence. MR GAME: Well, that really depends on how long you wanted the prisoner to be on parole for.
DEANE J: No, what I was saying is, presume that non-parole period and release period are going to coincide
which, of course, would be against the working
of the parole system; just make that assumption.
What would be the head sentence which, with
remissions and other advantages, would lead to a
non-parole period of six years, or a periodserved of six years?
MR GAME: A release date of six years. DEANE J: Yes. MR GAME: Well, a prisoner who served six years but was not
granted parole or had had his parole revoked - - -
DEANE J: Well, I have put it to you badly. Forget all about
parole. What would be the head sentence which,
making allowing for remissions and so on, would
result in six years being served?
MR GAME: Nine years.
DEANE J: Nine years.
MR GAME: And that is because, if the prisoner continues to be in prison every day of the week for six years and
he gets all of his remissions - - -
DEANE J: And he is not entitled to anything else. MR GAME: - - - and he is not entitled to anything else, well,
then that would be a nine year sentence.
DEANE J: Well, that was what I was asking you. He is not
entitled to anything else?
MR GAME: Yes. DAWSON J: What you would do is, you would add a third to what you would otherwise have imposed as the non-parole
period and then you would reduce the head sentence by
a third. Then you would achieve the period before release that you wanted without increasing the period
on parole beyond what -
C2T8/2/VH 12 13/4/89 Hoare
MR GAME: I am sorry, Your Honour, I am puzzled by that
example. Could you ask me that again? DAWSON J: If nowadays you wanted to achieve a sentence of
say twelve with a minimum of eight, you do that,
not having regard to the remissions, but now
you have to have regard to remissions and you
know that the eight years will not be served,
although that is what you intended, so you add
a third to that and you ensure that he thenserves - - -
MR GAME: No, according to the calculation you add a half to that. DAWSON J: My mathematics may be shaky but you add the relevant period to that.
MR GAME: Fifty per cent is what you would add to that.
DAWSON J: Yes, all right, but then you have to reduce the head sentence by that amount, do you not, so as to not increase the period on parole by the wrong balance?
MR GAME: Yes, well, then you run into another problem which is that there is no parity of the relationship between the non-parole period and the head sentence. DAWSON J: There will not be, it will be quite different,
will it not? But it has to be to achieve what
you are suggesting.
McHUGH J: But, Mr Game, you are throwing the weight of
your argument, or at least the emphasis, on
the question of how long you will serve on parole
but that does not seem to be a question that
the section is concerned with, is it? The questionis concerned with how long he should serve in
prison before he is eligible to be on parole.
MR GAME: That may be so, Your Honour, but my argument
section refers to sentence, I do not think the stands because it is the fixing of the - the section means anything more or less than sentences of imprisonment and whatever that involves in terms of parole. It refers to parole. DAWSON J: But what you really say is remissions are quite irrelevant to the period on parole, they do not
affect it.
MR GAME: No, remissions have a very real impact on the operation of parole. If I could give you this example - - -
C2T9 I 1 /ND 13 13/4/89 Hoare
DAWSON J: I thought you were saying you do not get remissions while you are on parole.
MR GAME: You do not get remissions while you are on parole but remissions have a very real impact on when you get parole because, for example, is you had a sentence of six years with a non-parole period
of 5 years and 11 months, then if the person
accepted the conditions of parole they wouldbe on parole for the last third of their sentence
notwithstanding the fact that if they did notaccept parole they would be released by the operation
of the remissions system at precisely the same
time.TOOHEY J: Do the remissions operate in exactly the same way on the head sentence in the non-parole period?
MR GAME: The remissions only operate on the head sentence
if the prisoner is in prison.TOOHEY J: Assuming the prisoner has served the entirety of his sentence.
MR GAME. But once the prisoner is released the remissions
do not operate pro tanto on the head sentenceat all. So, to give my original example, if you increase the sentences to 18 with 12, if the prisoner is released after eight, that prisoner will be on parole for 10 years; that is to say until the extinguishment of the head sentence.
The provisions that relate to remissions have got no relationship to what happens when the
person is wandering around the street on parole
but the person is liable, of course, to revocation
of parole and all that goes with that duringthat time. DEANE J: Yes, but rightly or wrongly, it would seem what
the Chief Justice is doing is saying, "You've
got to increase the head sentence because otherwise
it will undermine the whole parole system because
nobody will accept the conditions of parole if they can be released at the same time."
MR GAME: That is true, they may or they may not, but my argument is that there is no warrant in the provision for increasing the head sentence in this way. DEANE J: I was not getting involved in your argument,
I was simply pointing to what is obviously the
underlying thinking of the Chief Justice.MR GAME: Yes, I accept that that is probably the underlying thinking.
C2T9/2/ND 14 13/4/89 Hoare DAWSON J: What do you say should be done, Mr Game? How would you apply section 302?
MR GAME: I have several propositions about that, one of
them is that the - and I was proposing to take the Court to various cases in due course - - - DAWSON J: Do not let me take you out of your way. MR GAME: - - - but perhaps if I could give some examples:
one is an example that is shown by - and it is
an obvious sentencing example, is in HOARE'scase, he was in custody for 10 months and he was not entitled to remissions during that period and that is a fairly obvious example and in sentencing terms the 10 months would be equivalent to 15 months if he were entitled to remissions. That is one example.
(Continued on page 16)
C2T9/3/ND 15 13/4/89 Hoare
MR GAME (continuing): Another example is - and it is the FLENTJAR V WRIGHT example - say, a.person
had a very bad record and such an appalling record
that a question arose as to whether or not that
person should be granted parole at all. Now, a
question would arise as to whether or not having
regard to the remissions system that person could
be given a non-parole period - I am sorry, I left
out one piece of information which is that that
person none the less requires a period of
supervision at the end of their sentence. Now, having regard to remissions would enable a situation in which you set a non-parole period
that was very nearly equivalent to the head
sentence and provided the prisoner accepted the
conditions, then the prisoner would have a period on
parole under supervision at the end of their
sentence, and that is the FLENTJAR V WRIGHT
situation.
Could I just say one other thing, Your Honour.
It is clear enough from HARRIS's case, FLENTJAR V WRIGHT, REG V TOWN and TIO AND LEE that the court
has explicitly been having regard to the operation
of the remissions system in ascertaining what is
a fair and reasonable non-parole period
prior t0 December 1986. Ihe only step that it has not taken is the step that it has taken in DUBE
AND KNOWLES, then EASTON, then HOARE, is increasing
the sentences in the manner in which we say it
should not.
DAWSON J: Can I just follow the theory of the thing, whether or not that is what has been happening?
If under the old law you had a situation where
the appropriate sentence was 12 years with a minimum of
eight years and yo:u want to ·IlfJW' apply section 302 and yet
not produce disproportions in relation to the
head sentence, what would be the figures?
MR GAME: I am not sure that - that is a very difficult
question, Your Honour, because it assumes that you should have regard to remissions in a way which I
say· ultimately you should not, which is to increase
in any way either the non-parole period or the head
sentence.
DAWSON J: But you have to do something with the section. What do you say?
MR GAME: I say that the sentence should only be applied in a way which does not - it really leads to my more
fundamental argument which is that the section should
only be viewed in a way which does not lead to a
situation in which responsibility, in effect, for
part of the judicial sentence falls to the executive.
Now, if you increase the non-parole period, just as
if you increase the head sentence, then it falls
C2TlO/l/HS 16 · MR GAME 13/4/89 Hoare
foul of that proposition. The question that really remains is whether or not having regard to
remissions in the way in which the coart has in
HARRIS's case, FLENTJAR and TOWN, that is to say
observing the effect of what the court has
described as a fair and reasonable non-parole
period is something that is consistent with
the provision.
Now, that seems to me to be what the
legislation is directed towards but, as I said,
the sentencing result that is produced is rather
different.
DAWSON J: Why could I not, in that case, have a head sentence of 12 years and a non-parole period of
12 years, it would be, and then the remissions
would reduce the non-parole period to 8 years and
I would achieve the result that I intended to
achieve?
MR GAME~ That is the nub of the problem in a way. First of all, one must apply proper sentencing principles
to fixing the non-parole period and only a very high
non-parole period could be justified on sentencing
principles if the case were so bad that that were
appropriate in those circumstances.
(Continued on page 18)
C2Tl0/2/HS 17 13/4/89 Hoare
MR GAME (continuing): Now, it is my submission that it is false reasoning to turn around and raise the non-parole
period simply because the executive may reduce the
sentence by one-third. That seems to me to be the
fundamental flaw in that sort of reasoning.
McHUGHJ: It does not reduce the sentence, does it, it just
allows you out? The executive does not reduce the
sentence, it allows you to go ·out of prison, but
you may be brought back?
MR GAME: The sentencing result is this: you set a head sentence of 12 years with a non-parole period of 12 years but
we really mean eight years. It is up to the executive
to ensure that the person has the four years. That
example is four years to the executive sentencing
because the court's non-parole period is 12 years.
Now, it is an artificial way of going about sentencing.
The judicial sentence is "we mean 12 years with eight
but we are going to call it 12 years with 12."
TOOHEY J: There is power in South Australia, I suppose, not to
fix a non-parole period, is there, Mr Game?
MR GAME: There is power to fix a non-parole period in special circumstances.
TOOHEY J: Well, if the court was minded not to fix a non-parole period,the court would say 12 years was the minimum
period that the person should serve before beingreleased, how would you give effect to that in terms
of section 3027 You would have to sentence him to 18 years, would you not?
MR GAME: Well, you would have to sentence him to 18 years if
you were prepared to engage in the exercise of sentencing to 118 years but we mean 12 years"because there is nothing about the judicial sentence - the judicial sentence of 18 years has an unreality about it which is that six years is the six years that the
executive is expected to reduce the sentence by.
TOOHEY J: Yes, you may well be right but I wonder how else you could give effect to section 302 in those
circumstances.
MR GAME: Well, I can only answer those sorts of questions by giving examples of the way in which the Court of
Criminal Appeal has sought to do so and they have sought to do so through a series of cases which
I was proposing to take the Court to. Perhaps if I could take the Court to a case of TIO AND LEE,
(1984) 35 SASR. Amendments to the PRISONS ACT of 20 December 1983, the substantial and important
amendments were made which form a basis of the present
law in the CORRECTIONAL SERVICES ACT. The first matter at page 147 is that instead of the parole board
C2Tll/l/MB 18 13/4/89 Hoare fixing parole~ the court fixed parole and the prisoner
was thereby released on parole subject to acceptance
of conditions. Now, the learned Chief Justice observed at page 148 at the top that that would normally result
in an increase in non-parole periods. Then a little further down the page, at the end of the long
paragraph, the passage is:
(Continued on page 20)
C2Tll/2/MB 19 13/4/89 Hoare MR GAME (continuing): ·
For this reason alone, the non-parole
period will in future, in the general run of cases, constitute a greater proportion of the sentence than in the past.
Then:
Third, 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-paroleperiod.
That was section 42ra which is now section 79(2) which
provides very shortly that remissions are credited at 15 days per month for time served. Then, continuing:
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 theaction of the Parole Board.
That is to say, if you fixed a non-parole period that
was too high, then it would leave no scope for the
operation of parole under the old system because, for
example, if you fixed a non-parole period of two-thirds
of the head sentence, then the person would already have
been released and the non-parole period would be
irrelevant, the head sentence having been reduced pro-
tanto.
The effect of the new legislation is to apply
remissions to the non-parold period also.
problem which I referred to before but a subsequent This decision, incidentally, does not allude to the case does which is that remissions do not apply at all when a person is on parole. 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 andthe 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. For this reasonalso it is to be expected that non-parole periods
in future will generally constitute a greater
proportion of the sentence than in the past.
C2Tl2/l/SH 20 13/4/89 Hoare I should mention in HARRIS' case the Chief Justice
acknowledged that he was in error in as~uming that
the remissions would operate to reduce the head
sentence, except in the unusual instance which we
have dealt with, which is that the prisoner is notgranted parole.
MASON CJ: When was HARRIS· decided? MR GAME: HARRIS was decided in(l98LJ) 36 SASR 302. I just wanted to take the Court a little further through TIO AND LEE
before turning to HARRIS' case. The learned Chief Justice then went on to consider whether or not
the remissions system could operate to affect the
sentences, the head sentence and the non-parole
period. At the bottom of page 148:At the end of each month served in a prison, a prisoner may be credited with remissions
not exceeding fifteen days. When the total period served together with the total number
of days remitted equal the duration of thesentence, the sentence has expired. There
may therefore be remissions to a maximum of
one~third of the sentence. Until these
provisions come into operation, remissions
are governed by Regulation 16(2) -
those provisions came into effect in 1985.
It seems to me that the existence of the suspended provisions should not affect the framing of a proper 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.
Well, that latter part is where he is in error but
the principle is the same.
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.
Now, in the next paragraph, the learned.
Chief Justice went on to consider whether or not these
provisions apply to Commonwealth prisoners and he considered it to be relevant because, in the last
sentence of that paragraph:
In order to fix a fair and reasonable non-parole period it is, ~r, necessary to know whether any re.missions for good behaviour will operate to reduce it.
C2Tl2/2/SH 21 MR GAME J 3/ 4/89 Hoare MR GAME (continuing): There is, in my respectful submission,
a conflict between those two notions because, on
the one hand he is saying "We cannot have regard
to the remissions in fixing the non-parole period
in the head sentence," but on the other hand he is
saying "Well, the reality of the matter is that we haveto have regard to the remission system in fixing the non-parole period." That is a problem which
runs through all of the cases. Now, that is all I wish to say about TIO AND LEE. Perhaps if I could just mention the section dealing with
remissions which he refers to there, section 42ra
which is the provision which says that if the
executive is of the opinion that he is of good
behaviour, that is now in section 80 of the
CORRECTIONAL SERVICES ACT. So section 42ra(6) is in section 80 of the CORRECTIONAL SERVICES ACT
and section 42ra(2)is in section 79 of the
CORRECTIONAL SERVICES ACT.
Now, REG V HARRIS is the case in which the
operation of the remissions system is considered
further. The suspended provisions relating to remission had been brought into operation - I said
in 1985, but it was actually on 1 June 1984, which
appears in the middle of page 303. The question arose as to whether or not these should be
considered in determining the non-parole period
and head sentence. Just about the middle of page
303, the learned Crown prosecutor argued that:
Part IVB alters the effect of good
conduct remissions upon the head sentence
where the prisoner is released on parole.
Regulation 16(5) provided that, "for every
remission mark granted, a prisoner's
sentence shall be remitted by one day, and
the remission shall have effect accordingly
as from the day of the. granting." The
granting of good conduct remissions under
the regulation therefore had the effect ofcancelling pro tanto the head sentence as
from the date of the grant of the remissions. If the prisoner was subsequently released
on parole, the parole period extended from
the date of his release until the expiration
of the head sentence as reduced by the good
conduct remissions granted.
Then he refers to section 42ra(2) and section 42ra(6)
which, as I said, is now in section 80 of the
CORRECTIONAL SERVICES ACT, which provides that:
Notwithstanding any other provision of this
Act, a prisoner, other than a prisoner to
whom subsection (7) applies, shall ..... be
released from prison when the total number
of days of remission credited to him and theperiod he has served in prison together equal
C2Tl3/l/VH 22 13/4/89 Hoare the term, or terms of imprisonment to
which he was sentenced.
That is, the prisoner who has either had no parole
or who has had his parole revoked. Then across the page at about the middle of 304, the
reference to 42k(l) which has its analogue insection 66(1) of the CORRECTIONAL SERVICES ACT
and briefly says a person is to be released on parole
when the days served, plus remissions, equals the
non-parole period:
The Act expressly provides, then, for the
reduction of the non-parole period by
the amount of the good conduct remissions
and also provides for the extinction of
the sentence when, there being no earlierrelease on parole, the period of the head
sentence, as reduced by the good conduct
remissions, expires. There is no provision
analogous to the provision in Regulation 16
for the outright remission of the head
senrence to the extent of good conduct
remissions granted. There is therefore no
express provision which would result in
the reduction of the head sentence wherethe prisoner is released on parole.
(Continued on page 23)
C2T13/2/VH 23 13/4/89 Hoare
MR GAME (continuing): And that is the situation now: The period of parole is expressly
provided for in sec. 42n -
which is now in section 69 of the CORRECTIONAL
SERVICES ACT -
"A prisoner (not being a prisoner
serving a sentence of life imprisonment)
who is released on parole shall, unlesshis release is cancelled, his parole
is discharged or his sentence is
extinguished, remain on parole until the
expiry of the term, or terms, of
imprisonment to which he was sentenced."
Leaving out the next sentence but continuing
after that:
It· follows, I think, that remissions
granted under Part IVB of the Act, that is
to say remissions granted after 1st June,
1984, do not operate to reduce the head
sentence where the prisoner is released
on parole and the parole is not cancelled.
In such a case the period of parole extends
from the expiration of the non-parole
period as reduced by good conduct remissionsto the expiration of the period of the head
sentence, unreduced by any good conduct
remissions, as fixed by the sentencing judge.
There is nothing in Part IVB to indicate an
intention to affect rights which had accrued
to prisoners prior to the commencement of
that Part. It follows that remissions
granted under Regulation 16 and 16A prior
to 1st June, 1984 operate to reduce the
head sentence of a parolee, but remissions
granted after 1st June, 1984 do not.
MASON CJ: Well, the only difference between the two cases
is that there was legislation in the meantime which resulted in a change in operation.
MR GAME: Yes, that is right. MASON.CJ: So that after the 1984 amendment there was not
a reduction in the head sentence.
MR GAME: That is right: This point was not adverted to in REG V
TIO AND LEE or in REG V BRENNAN. It does not affect, however, the principles
enunciated in those cases. It simply
means that the scope for parole resulting
C2Tl4/l/HS 24 13/4/89 Hoare from a given non-parole period is greater
under Part IVB than it would have been
under the Regulations.
Now that, in my respectful submission, is an
important passage because it involves the
acknowledgment of the impact of the remission
system upon the courts' fixing of non-parole
periods which was also acknowledge in TIO AND LEE.
If I could just take the Cburt to another case in
36 SASR -
MASON CJ: Now what is this going to tell us? MR GAME: BRENNAN's case MASON CJ: Yes, but what is it going to tell us? MR GAME: It is simply an authority for the proposition that - it confirms TIO AND LEE as the appropriate approach
to take in fixing the non-parole period.
MASON CJ: Does it tell us any more than that? MR GAME: Yes, it confirms in very strong terms that it is bad sentencing practice to assume that a prisoner
will receive the remissions to which he is entitled.
Now, the reason why I wish to refer to it, and I
suppose that is all that I seek to - it confirms in
strong terms that proposition and the point aboutthat is that raising the 50 per cent ignores
explicitly that sentencing proposition. The passage is at page 80, about point 6 of BRENNAN:
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 same for the duration of the sentence; it to good conduct remissions will remain the 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 IB 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.
C2Tl4/2/HS 25 13/4/89 Hoare
MR GAME (continuing): And then, considering a case of a prisoner whose sentence was fixed prior. to the operation he pointed out that it was necessary to have regard to that extent to the remissions.
The case of FLENTJAR V WRIGHT brings
together the points in the judgment of is at page 262 to 263. This is the case of the
prisoner who otherwise would have been likely
to receive no non-parole period by reason of
his previous record, including his previous breaches
of parole, commission of offences on parole and
the like.
In this case - perhaps if I just begin at
the bottom of page 261. There is a very brief
reference to the statistics in relation to the
proportion of non-parole periods to head sentences
and then, at the top of page 262:
But it does not follow that, because
most non-parole periods are of the kind mentioned, there is not a place for the
fixing of a non-parole period where the
Court is of opinion that there should not
be any significant reduction in the period
actually served compared with the head
sentence. The existence of a system of remissions applicable to prisoners and applied
to the non-parole period means that parole
can subsist and the assistance of the parole
system can be available to a parolee for
a period long enough to be useful even though
the non-parole period is virtually as long
as the head sentence. The importance of this lies in that it offers the opportunity
of harmonizing the perceived short term
interest of the public to have the prisoner
removed from the society with the longer
term interest of the prisoner in rehabilitation
and the longer term interest of the public
in his rehabilitation.
So that the existence of the remission system becomes a basis for fixing a non-parole period
nearly equivalent to the head sentence.
Mr Justice Johnston, at page 264, answers
the objection which may be that it makes an
irrelevant non-parole period because the prisoner
will simply go to the end of his remissions period
and then be ieleased:
C2T15/l/ND 26 13/4/89 Hoare I think that I should deal immediately with a criticism which may be made of the
sort of order that I mentioned above. It
may be said that such an order is grossly
unfair to the prisoner in that he serves virtually his whole sentence (subject to remissions) but by the device of fixing
a non-parole period he remains subject to
supervision and liable to imprisonment if
he breaches the conditions of his parole
right up to the end of the head sentence.
I mention this to dispose of it. There
is no unfairness to the prisoner because
there is no obligation to accept the parole
conditions - the prisoner takes it or leaves
it.
So if this prisoner accepts his parole he is
on parole for the period in which he would otherwise
be released without supervision. And that is the point he makes in the rest of that passage.
Just back at page 263, Mr Justice Johnston
goes through a number of examples of ways in
which the court can have regard to the remissions
system and they are not ways that involve any
necessary increase in either non-parole period
or head sentence and this sentencing practice
does not necessarily involve any increase innon-parole period because this is a sentencing
practice directed to a question whether or not
a prisoner should have parole at all and it is
an acknowledgment of the existence of the impact
that the remission system may have upon that
non-parole period.
(Continued on page 28)
C2T15/2/ND 27 13/4/89 13/4/89
DAWSON J: I do not follow how he does this before section 302? MR GAME: Yes, all of this is before section 302 but I am presenting these cases as an argument that demonstrates
the fundamental fallacy in the approach that the
court is taking to section - - -
MASON CJ: What was the reason for adopting this new approach before section 302 was introduced?
MR GAME: Well, there was no reason except for the fact that
the court was acknowledging in FLENTJAR, in HARRIS,
in BRENNAN and in TIO that the remissions system
had a real impact upon the non-parole period and it
sentenced accordingly.
DAWSON J: But it was launching out in the direction that section 302 to come of its own motion?
MR GAME: That is right. DAWSON J: I see. MR GAME: And then along comes section 302 and the court says "We will add 50 per cent to sentences'.', that is the
fundamental problem. If the Court pleases, I have said nothing about the sentence which was imposed
in relation to HOARE or the judgments in HOARE and
KING. It may be convenient to turn to that now. Perhaps if I could take the Court to page 25 of the application book. Hoare had been in custody since
the - these are the conclusions of the learned
sentencing judge's sentencing remarks, towards the
end of the page:
You have been in custody since 28 June 1987 and
I will take that into account in fixing the
head sentence.
He is sentenced to a period of 12 years imprisonment -
to corm:nence at the ..... unexpired portion of
the sentence imposed on 29 November 1985.
Now, the unexpired portion of the head sentence -
the head sentence went to 16 September 1990, which
can be seen from page 16 at the bottom of the antecedent
report. That meant three years, two months and 18
days. Now, if we have regard to the 10 months in prison and engage in the exercise of adding five
months to that on the assumption that he would have
been entitled to remissions, that is to say, assuming that
he had been sentenced on 28 June 1987, we have an
effective sentence of 13 years and three months for
this one offence, in circumstances in which the
court acknowledged that the tariff pre-Section 302was eight years for this kind of offence.
C2Tl6/l/MB 28 13/4/89 Hoare
DEANE J: Where is that? .
MR GAME: I should say, Your Honour, there is a dissenting note in relation to that because Mr Justice White thought that this case was below the tariff of eight years and below the tariff of 12 years but subject to that
if I could take the Court to the judgment ofMr Justice Perry in HOARE's case which appears at page 45 and following. There is a reference to some calculations and those calculations at page 46 are, strictly speaking, not correct calculations, they are not in accordance with the calculations that
the court has made, has not taken into account
remissions in the time served and has made an errorin relation to the balance of the sentence. But then at page 47 a reference to his decision in KING'S case.
(Continued on page 30)
C2T16/2/MB 29 13/4/89 Hoare MR GAME (continuing): · He does no more than refer to his
decision in KING's case. Then, if we go to his
decision in KING's case starting at page 69:In support of his argument as to the establishment of a standard for armed robbery,
Mr Rofe referred first to RV DORNING.
Then, on the following page is a reference to the
observations of the Chief Justice in DUBE AND KNOWLES;
then EASTON is relied upon as being authority for the
proposition that:
Eight years were appropriate for
pre-December 1986 armed robberies, and
12 years for subsequent armed robberies -
I should pause to mention that in EASTON's case,
Easton received eight years plus eight years
concurrent for two offences before 8 December and
12 years plus 12 years concurrent but cumulative
in relation to two offences committed after
8 December for no other reason than the operation
of section 302.
Then, at the following page:
In my opinion, the sentencing standards
identified in the line of authority commencing
with DORNING's case, through DUBE AND KNOWLES to EASTON's case, should still be adhered to.
This is not to say that there will sometimes
be circumstances peculiar to the particular
offence and to the offender which may justify
departure from the "standard".
DEANE J: What, does that mean that an habitual criminal gets
eight years and and ordinary person gets 12 years?
MR GAME: No, it means that - DEANE J: Well, is that not what it would mean because an habitual criminal does not get any remissions?
MR GAME: Well, yes. I am sorry, I missed the - yes. Then,
if I just go back to the judgment of Mr Justice White in KING's case because he confirmed the principle but said that there were different levels of tariffs. At page 60, he agreed generally - I should say that in HOARE's case, Mr Justice Cox agreed with
Mr Justice Perry so that the key to HOARE's caseis to be found in Mr Justice Perry's decision in KING's case, subject to some remarks that Mr Justice Cox himself made in KING's case as to the question whether or not the principles were hard and fast.
C2Tl7/l/SH 30 13/4/89 Hoare Now Mr Justice White dissented in HOARE's case
not on the basis of the operation of section 302
but because this kind of offence, involving a
tomahawk in a pizza bar, although for a repeat
offender was not, itself, of the worst kind of
offence.
Now, Mr Justice White agreed with the reasons
of Mr Justice Perry and the orders proposed by him.
He said:
The pre-December 1986 "standard tariff"
of 6 to 8 years for each robbery became 9 to
12 years by reason of the operation of the
operation of the amendment to s. 302 of the
CRIMINAL LAW CONSOLIDATION ACT 1935 as from
December 1986.
I would distinguish that "standard tariff"
from the tariff to be applied in cases such as
the present where the offender is not chargedwith multiple offences of armed robbery.
So, he is saying this is a different kind of case.
He is charged with a single offence of robbing
a chemist shop while armed with a knife. While
described as a "standard tariff" there will
naturally be fluctuations within it to
accommodate the special circumstances of each offence and each offender; and there may well
also be fluctuations over or below it where,
for some special reason, a greater or lesser -
sentence. Then, a little further down:
More relevant here is the fact that the "standard tariff" of 9 to 12 years is not directly applicable to this offender because he is being sentenced for
a single armed robbery.
And the principles in ROSSI and EASTON involving
multiple armed robberies with "a background of prior conviction for a like offence or offences."
Now, if we turn over to the following page, then,
he said that this single offence did not fall within
the top tariff. It came within the next "standard
tariff" of a penalty of about eight years and, formuch the same reasons .. he dissented in the case of
HOARE.
C2Tl7/2/SH 31 13/4/89 Hoare
MR GAME (continuing): Now, the sentence in KING's case, on the application of section 302, which involves the use
of a knife in a single armed robbery of a chemist's
shop, results in a sentence of eight years with a
non-parole period of five. In HOARE's case, for
pretty much the same sort of an offence, giving
application to section 302, we end up with a real
sentence in excess of 13 years.
TOOHEY J: Mr Game, all judges would have allowed the Attorney's
appeal in HOARE, would they not?MR GAME: No, Mr Justice White would not have allowed the Attorney's appeal in HOARE.
TOOHEY J: Perhaps I have missed something. At the foot of
page 62 -
MR GAME: That is in KING, Your Honour. If you go back to page 35 -
TOOHEY J: Oh, I beg your pardon, yes. MR GAME: Then he said that for the same reasons he gave in
KING - and Mr Justice Cox at 38 simply said he agreed with the judgment of Mr Justice Perry.
A point that I made in passing before was that
at page 46 there seems to have been assumption
that the:
overall head sentence was 15 years less a
few days.
Well, it is only 15 years in an abstract sense. The total sentence is much closer to 16 1/2 years if one considers the time he spent in custody and the error which the court made in relation to the two years 11 months and 18 days. That is the substance of the material relating to HOARE's case
and all I need say about EASTON's case is that, in
that case, in relation to the facts - perhaps if
I just refer the Court to the EASTON application book - in that case in the judgment of Mr Justice White -
it was an attorney's appeal against sentence - the
relevant passage begins at page 294:
Mr Doyle relied particularly on the recent
cases of KNOWLES and ROSSI.
ROSSI is a pre-December 1986 case which simply
deals with no questions of principle but it relates
to a manifestly excessive appeal and confirms thatsection 302 will result in higher sentences. Then
he continues, Mr Doyle relied on those cases:
as the basis for his submission that a sentence
of imprisonment of about 8 years was appropriate
C2Tl8/l/VH 32 13/4/89 Hoare for a pre-December 1986 armed robbeFy by
a person with a prior record of serious
violent offending and 12 years for a similar
offence (and offender) after that date. He
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.
(Continued on page 34)
13/4/89
C2Tl8/2/VH 33 Hoare MR GAME (continuing): The sentence of 15 years with 11~ years non-parole period was set aside.
At the bottom of page 295:
The sentences and groupings suggested by
Mr Doyle Q.C., which I think are appropriate,
were 8 years on each of the two
pre-December 1986 offences (concurrent)
and 12 years oneeach of the two offences
after that date (concurrent) ..... total
sentence is 20 years ..... non-parole period
of 15 years.
So that there is a case in which the sentences are distinguished for no other reason than the
operation of section 302. Now, that deals with all of my submissions in effect of the arithmetical
aspects of the matter. I have some further
submissions which relate to the question of what
is in fact involved in a court changing its
sentencing practices to add, say, the order of
50 per cent for no other reason than that theexecutive may reduce that sentence by 50 per cent.
McHUGH J: But you have pointed out to us some of the difficulties and perhaps anomalies that arise as a
result of the post-1986 decisions of the Court ofCriminal Appeal, but what is your submission as to
how the section operates?
MR GAME: My submission is that either - my first submission is that the provision should not be given an operation which will either increase non-parole
periods or head sentences; that is my first submission. My second submission is that there are ways in which one can have regard to remissions
which avoid that, but they are basically circumstances
involving anomalies in sentencing, or they may be
the FLENTJAR V WRIGHT situation, namely the choice
as to whether or not a person should be entitledto the benefit of a non-parole period at all.
McHUGH J: When this section was introduced into the Parliament was there any explanation as to what its purpose was?
MR GAME: There was. I have the second reading speech. The second reading speech simply says that the
Correctional Services Minister said that it was to
confirm the power that the courts already had in
relation to sentencing and a junior minister,
Mr Mayes, said that the courts had been ignoring the
operation thereof. Perhaps if I could hand to the Court copies of the second reading speech.
MASON CJ: When you say a junior minister, was he the minister responsible for - - -
C2Tl9/l/HS 34 13/4/89 Hoare
MR GAME: He was not the minister responsible. The minister responsible was the Correctional Services Minister but the junior minister presented the·second
reading speech and then the Correctional Services
Minis~er proceeded to explain the operation of the
provision. It was dealt with on two separate days, and those are the two days. MASON CJ: Do I take it that in paragraph 3.4 of Mr Sykes's affidavit you set out your view as to the
operation of section 302?
MR GAME: Par a graphs 3 . 2 and 3 . 3 , was it ? MASON CJ: I said paragraph 3.4.
MR GAME: Yes, that is correct. MASON CJ: Well, do you have anything more to say about the actual operation of the section as you see it?
How does it operate in terms of the ordinary case?Are you going to give it effect in the ordinary
case, or not?
MR GAME I am sorry to be obtuse, but I have difficulty
answering that question. If my fundamental submission is correct, then the provision should
be ignored.
(Continued on page 36)
C2Tl9/2/HS 35 13/4/89 Hoare MASON CJ: It is very difficult for a court to ignore a
provision altogether, is it not?
MR GAME: Yes. MASON CJ: You are not suggesting that the provision is invalid?
MR GAME: No. MASON CJ: But you are suggesting that although valid the court should ignore it?
MR GAME: I am saying that having considered the operation
of it, the court should decline to have regard
to it in any way that would involve an increase
in sentence because that is a sentencing exercisewhich results in the abrogation of judicial power to the executive and the executive
of course, can reduce the sentence for good
behaviour but if the executive has a third, for
example, of the sentence, then that is the logicalequivalent of the executive can increase the sentence for misbehaviour or that the executive can convict and sentence for misbehaviour. This is an exercise which results in - the
sentence is not increased, either the non-parole
period or the head sentence is not increased
for any reason concerned with sentencing; thesepeople have not been more wicked, deterrence is not a factor; the only factor is that a third is added to the sentence so that the executive can, in its discretion, reduce a third off the sentence. That is a sentencing exercise which is the practical equivalent of - because the court, when it says, "18 years but we really mean 12", the court is giving 6 years to the executive. That is exactly what it means in practical terms and that is a construction which should be avoided, in my respectful submission, at all costs.
That is why I answer the question of Your Honour the Chief Justice with some diffidence
because I am not certain what construction one
can place on the provision which can be reconciled
with the various submissiora that I have put to
the Court because the submissions I have put
are, really, ultimately not entirely consistent
with each other because my fall-back position is that the way in which the court was having regard to remissions before was obviously far preferable than the way in which the court is
now having regard to the remissions system.
C2T20/l/ND 36 13/4/89 Hoare
DEANE J: But that is not really exactly appropriate to
fixing the non-parole period, is it, in thatwhat is wrong with the court talking the approach, "Well, if he's a model prisoner he'll get remissions and having served as a model prisoner it would
be appropriate that he be released after two
years. But if he's not a model prisoner anddoesn't get his remissions it would be appropriate
that he serves three years. Therefore we fixa non-parole period, having regard to section 302 and the relevant remission provisions as three years."? MR GAME: Yes, that is a way of finding a sentence which
does not mean that the prisoner will be on parolefor too long a period. DEANE J: But that is on one approach increasing the non-parole period by having regard to remissions in that it may well be that the court would otherwise
have said, "A non-parole period of two and a half years, because we don't know." MR GAME: Yes, that may well be so. It is my submission
that that is what the court was doing before
but what the court is doing now is a differentexercise. DEANE J: I thought you said that it could not increase the non-parole period by - MR GAME: No, I said the court could not increase the non-parole period as an exercise in itself but
the exercise that Your Honour has referred tomay result in an increase in the non-parole period but only because the court wishes to avoid the result that the prisoner is on parole for too long a period, which is the TIO AND LEE/HARRIS approach to setting a non-parole period. In the second reading speech the only passage
I would wish to refer to was at page 1175.
MASON CJ: Whereabouts is this,Mr Game? MR GAME: On 24 September 1986, page 1175: In clause 18 of the Bill we have again
spelt out to the court which it can already
do so that it is perfectly clear. That clause inserts in the Act section 302, which
provides .....
While the courts could always do this 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.
C2T20/2/ND 37 13/4/89 Hoare
MR GAME (continuing): Now, there is that in the speech of the Correctional Services Minister and then back on
28 August - - -
DEANE J: If you go back to the sentence before it does not help
you, does it, his example, "However it is true that
somebody can have a sentence."
MR GAME: Yes. DEANE J: He seems to be saying "This will enable the court to increase the over 12 months to an extent that will
stop him serving less than the under 12 months byreason of remissions."
MR GAME: Yes. In the speech of Mr Mayes there is a
passage at page 816, that is, on 28 August:
One problem which has arisen in this area is
the effect of remissions on the sentences
imposed by courts. The intention of the original legislation was that the court would take into
consideration the remissions a prisoner can
earn on his or her non-parole period when
determining sentences. However, the courts have taken the view that the Judge is precluded
by law from taking into account the likelihood
of good behaviour remissions during thesentencing process.
Well, the courts have not taken that approach.
DAWSON J: That is wrong, is it not, as an approach? MR GAME: That is wrong, yes. The new Bill specifically addresses this problem
and provides for an amendment to the CRIMINAL
LAW CONSOLIDATION ACT to empower Judges to
consider the effect of good behaviour remissions
during the sentencing process.
I should mention that there is no provision in the South Australi~n ACTS INTERPRETATION ACT that enables
consideration of second reading speeches other than -
MASON CJ: Can you identify,on page 816, the passage that you were reading from?
MR GAME: There is a paragraph that begins with the word "Many".
About half-way down that paragraph:One problem which has arisen in this area
is the effect of remissions on the sentences
imposed by courts. The intention of the original legislation was that the court would
take into consideration the remissions a prisoner
can earn on his or her non-parole period when
C2T21/l/MB 38 13/4/89 Hoare
determining sentences. However, the courts have taken the view that the Judge is
precluded by law from taking into account
the likelihood of good behaviour remissions
during the sentencing process.
Well, as I hope I have demonstrated that is not
correct, the courts were having regard to them in
a particular way.
DEANE J: Is that not what Chief Justice King said in HARRIS? MR GAME: Yes, he said they could have regard to them. DEANE J: I thought he said they could not, they could not presume - - -
McHUGH J: In DUBE he introduced his explanation of the
legislation by referring to the English cases. He said the judges could not have.
MR GAME: Yes. But in HARRIS and in TIO he said that you could have regard to remissions in fixing a proper
non-parole period, that is exactly what he said.
So that short sentence is in error if it suggests
that they were not having regard to the remission
system.
McHUGH J: But only to the extent that they were having regard
of the remission system in relation to parole periods
not in relation to sentences?MR GAME: Yes. The new Bill specifically addresses this
problem and provides for an amendment to
the CRIMINAL LAW CONSOLIDATION ACT to empower
Judges to consider the effect of good
behaviour remissions during the sentencing
process.
DAWSON J: Mr Game, there are obviously problems, housekeeping
problems, mechanical problems about all of this but what is there of general importance in these
cases, in sentencing?
MR GAME: Your Honour, it is a matter of the greatest public importance if all prisoners are receiving 50 per cent
longer sentences, that is the first matter.
DAWSON J: What principle is involved? I mean either you can have regard or you do not have regard to remissions
in relation to both the head sentence and the non-parole
period or one or the other but the legislation has
provided, as it has, difficult to construe perhaps,but what point of principle?
MR GAME : Well, Your Honour, for the reasons that are laid out in the further paragraphs of Mr Sykes' affidavit, it is my sub:nission that there is a fundamental question about 'What is involved when the courts engage
in the kind of exercise that they have.
C2T21/2/MB 39 13/4/89 Hoare MR GAME: (continuing) : That is to say, that the court's construction of
section 302 raises a matter of fundamental
importance. In the ordinary course, having
regard to remissions it might not raise a :funcl.anEntal
question of principle, but the way in which the
Court of Criminal Appeal has approached it
does raise a question of the most fundamental
importance.
DAWSON J~ That qu~stion being?
MR GAME: That question being whether or not the way in which the court has approached this question is
to abrogate judicial power to the executive
because, as I said before, there is no other
justification for the additional 50 per cent than
that it is 50 per cent for the executive. The court, when it fixes a sentence of 18 years, it
means 12 years. The court has not said, "We increase
the sentences," for any other reason. They have not said the sentence should be heavier by reason
of any sentencing practice. I mean, I am not sure that- - - MASON CJ: Well, I think you have managed to make that point.
MR GAME: I am sorry, it is difficult to find ways of expressing it in other than repetitive terms. MASON CJ: If we put to one side, for a moment, your reliance on judicial power, can you really get any
question of general principle out of it?
Section 302 was expressed in very general terms.
It seems to give the court a very wide charter as
to what it shall do in relation to this problem.
Is not what the court has done permissible as a matter of construction of a very large discretion?
MR GAME: Well, no, Your Honour, because it offends the
fundamental point which I made at the commencement
which is that you cannot have regard to remissions
in fixing the head sentence in any way which will
result in an increase in the head sentence.
McHUGH J: But you can _if the legislature tells you you have got to
and the court has so construed this legislation
as having that ef feet there. The c'.ourt has read this as a direction to increase sentences. Now that may be right or wrong but that is what they
have done. Then the question is, is that a legitimate view of the section?
MR GAME: All I can say, Your Honour, is that, for the reasons
that I have outlined, that is my submission, not in
a very basic and important way.
MASON CJ: Well now, we seem to have exhausted this from your
point of view, have we not?
C2T22/l/VH 40 13/4/89 Hoare MR GAME: Yes,I think so. The only other matter in relation to the question of special leave I would raise is
that I would, to the extent necessary. ·haveresort to section 35A{a)(ii), that is
to say, the matter is of - ~ -
MASON CJ: Public importance.
MR GAME: Public importance.
MASON CJ: Yes, well you made that point, I thought, in
response to Justice Dawson.
MR GAME: Yes. The remainder of my argument really turns on paragraph 3.5 of the affidavit of Michael Sykes -
turns upon whether or not the Court comes with me
on the first step of the exercise and subparagraph (b)
is really intended to be illustrative.
MASON CJ: I think you might have more difficulty with paragraph 3.5 than any other steps of the argument.
MR GAME: Yes.
(Continued on page 42)
C2T22/2/VH 41 13/4/89 Hoare
MR GAME: Yes. Now, I was just seeking to say that the crucial step was the first step in my submissions. Part (b) is intended to be illustrative and, then, turning to (c) and the question of whether or not
separation of powers can be referred to in aid of
statutory interpretation. The case of GILBERTSON
V THE STATE OF SOUTH AUSTRALIA I would seek to take
the Court briefly to. The - - -
MASON CJ: What is that going to tell us? MR GAME: It is going to say simply that, although there is no strict separation of powers, separation of powers can be relied upon in aid of statutory interpretation. That is in the Chief Justice's judgment and in the judgments of Mr Justice Wells and Mr Justice Jacobs,
the proposition that it is legitimate for the Court
to find ways of avoiding consequence of interference
with the independence of judicial power. Those are the sorts of propositions that I would seek to put -MASON CJ: Well, there is probably no contest about those
propositions.
MR GAME: The remainder of my argument in subparagraph (d), the words "have regard to", cases of DORRESTIJN, words "have regard to" and they each support the
proposition, in my respectful submission, that - - - McHUGH J: But, this is your main point, is it not, that you
criticize the construction which the Chief Justice
placed on the words "have regard to" in DUBE.
MR GAME: Yes. McHUGH J: He recognized that ordinarily they mean no more than. the Court is required to consider·the factors but he said that it must mean more than that in the present context and that its effect was to direct the Court
to adjust the sentence upwards which it otherwise
would have imposed.
MR GAME: Yes. McHUGH J: But is that not what your whole case is about?
MR GAME: Yes, Your Honour. Could I take the Court to ISHAK V THOWFEEK, (1968) 1 WLR 1718, which deals very
brieflx with the construction to be placed on the
words 'have regard to" in a different context. It
was followed in DORRESTIJN which is a decision of
the South Australian Full Court of 1984. In ISHAK V
THOWFEEK, at page 1725:
C2T23/l/SH 42 MR GAME 13 / 4/89 Hoare The requirement that the board shall "have
regard" to certain matters tends ip. itself
to show that the board's duty in respect ofthese matters is limited to have regard to
them. They must take them into account and consider them and give due weight to them,
but they have an ultimate discretion and arenot bound to select a person or persons whom
they consider unsuitable.
Another consideration of those words is in SOUTH
AUSTRALIAN PLANNING COMMISSION V DORRESTIJN, (1984)
36 SASR 355, in the judgment of Mr Justice Cox at
the bottom of page 370:
The difficulty about this interpretation
of sub-s. (9) is that it puts more weight on
the words "have regard to" than they can
reasonably be expected to bear. Those words
have generally been construed, in. a context
such as this, as requiring the authority
concerned to take the stated matters into
account and consider them and give due weight
to them, but without being bound to comply with
them. Ultimately, the authority's discretion
remains unfettered. See ISHAK V THOWFEEK.
(Continued on page 44)
C2T23/2/SH 43 MR GAME ]3/4/89 Hoare
MR GAME (continuing): In my submission, precisely the same considerations apply to consideration of
the words "have regard to" in these provisions.
The word "shall" has an operation which requires
the courts to consider that the words "have regard
to" cannot be given more weight than they can carry.
The discretion of the court in this instance - - -
DEANE J: What if there was a change to the South Australian law to the effect that all prisoners would spend
every weekend at home with their families and there
was a provision saying, "In senteacing the court
will have regard to the fact that prisoners will
not be kept in gaol all the time but will spend
every weekend at home with their families"? Would it be wrong, in that context, for the courts to say,
"The nature of imprisonment has changed and that
being so what was previously an appropriate sentence
is probably going to be a little light on because
a lot of the factors that deterred a longer sentence
have been taken away"?
MR GAME: That would completely undermine the effect of the giving of the prisoners the weekends to go home and
the same - - -
DEANE J: No, I added the statutory provision requiring the court to have regard to the fact that the nature of imprisonment had changed and that the prisoners all
had the weekend at home from then on.
MR GAME: It may be that the court would be required to increase the sentence in that case, but that is
an explicit piece of legislation - - -
DEANE J: It would not be required to, but would it be entitled to?
MR GAME: It may be, but that is a more explicit piece of legislation. This is not an explicit piece of
legislation.
DEANE J: Well, the relevant legislative provision was simply "have regard to the weekend provision".
It possibly just points to the problem. It may
not help its resolution.
McHUGH J:
Mr Game, are you not forced to contend that section 302 was simply declaratory of the existing
law? MR GAME: Yes. McHUGH J: If it had any other purpose, then your whole case
falls to the ground, does not it?
MR GAMES: I would not make that concession C2T24/l/HS 44 13/4/89 Hoare
DEANE J: I would beware of that. MR GAME: It sounds a pretty risky concession to me, and I would not make it anyway. My argument is that
it is completely unthinkable that ilie legislation in
the light of the existing regard which the court
was having to remissions would pass a piece oflegislation r,equiring it to have regard that would
produce an entirely different and exceptional
sentencing result, and of course there are a whole
series of decisions in other contexts, the NewSouth Wales context PAIVINEN's case, O'BRIEN's case, so there are a whole series of cases which set out
pretty explicitly that the courts cannot have regard
to the operation of the remissions provisions in
the way in which the court says that they have had
regard to them and they shall have regard to themin this case.
MASON CJ: I think we are seized of the point in (d) and we are also seized of the point in (e) of
paragraph 3.5.
MR GAME: I have no further submissions, unless there is anything further the Court wishes to hear from me.
McHUGH J: What about EASTON? Have you not got an argument - - - MASON CJ: Yes. Did you not want to make some additional point about EASTON?
MR GAME: In relation to sentence? MASON CJ: Yes. MR GAME: I have no further submissions in relation to
sentence in EASTON. The point that I make in EASTON is that the sentencing result is only brought
about by the operation of section 302, so I have
really made the point that I wish to make in relation
to EASTON.
MASON CJ: I see. Now what about EASTON? You have a point on conviction there.
(Continued on page 46)
C2T24/2/HS 45 13/4/89 Hoare MR GAME: Yes. If I could hand to the Court my outline in EASTON. The applicant was convicted of four counts of armed robbery after a trial by a judge alone on 29 March 1988 and the substantial, if
not the only issue at the hearing of that trial
was the admissibility of confessional material
which consisted in a confession which was obtained
between 3.40 pm and 5.55 pm on 25 March 1987.
The relevant factual background can be found
in the judgment of the learned trial judge and
if I could take the Court to page 237. At 8. 16 on 25 March, the Detective Lean in Adelaide
sent a telex to Detective Sergeant Green at Alice
Springs informing him that two detectives, Kelso
and Chamberlain were arriving that morning at
10. 15 and could they please meet and assist them.
At some time shortly before 9. 10 Green gave
instructions to Lade and Nixon to go and collect
Mr Easton - or instructing them to take him to
the police station. Nixon and Lade went to pick up Easton at his place of work at the Alice Springs
golf club at 9. 10. The evidence established that Nixon knew Easton well, that he had arrested
him in Tennant Creek, also that Nixon had also
had contact with Kelso by phone prior to thatday.
He was taken to the police station - now,
if I turn to 239 - between 9.30 and 11.50 Easton
was questioned. It is described by the learned
trial judge as:
a fairly desultory interrogation, which
was not recorded, took place, in which the
officers questioned the defendant about
his movements in general, and about the
two hold-ups in particular.
McHUGH J: Could I just ask you, was it the accused's case that it was not a genuine interrogation,that
it was just a holding operation?
MR GAME: Yes, Your Honour, and it is part of our case that Nixon and Lade gave no other explanation for what they were doing and that they had
instructions to do so from Green. Nixon was the man who was responsible for the Alice Springs side of the Northern Territory investigations. There is no suggestion that he had any intention
prior to that day to question Easton. He was
the man who had had contact with Kelso. He was the man who put Kelso on to Easton and Green was not called so that there was no evidence as to why they were questioning this man and that is part of the matter that I wish to ventilate
on a hearing of this application.
C2T25/l/ND 46 13/4/89 Hoare That takes us from 9.30 to 11.50. At some
stage Easton expressed fear about losing his
job if he was not back at work soon - and this
is not in the judgment but it is at page 35,
line 3 - and they rang his employer and reassured
his employer that everything was okay. Shortlybefore the interview that took place at 11.50
and at about 11.30 a more formal record of
interview took place and that was between 11.50
and 2.09 and Easton requested that his parole
officer be obtained for the purpose of that
interview.
(Continued on page 48)
C2T25/2/ND 47 13/4/89 Hoare
MR GAME (continuing): The interview which consisted of some 189 questions is to be found at page 214.
It is clear enough from looking at that document,
that he was cautioned at least three times during
the course of that interview. He was asked 149 questions before he was asked if he had ever been
to Darwin. He was asked 165 questions before he was asked if he had ever been north of Tennant
Creek. Nixon, in evidence at page 12 line 5
described this interview as, quote:
virtually a carbon copy of the conversation
which had already taken place. He said that the reason he wanted to record it was "for
Darwin's benefit"; page 9 line 26. After that
interview was completed there was a further
interview in which Easton was asked - if it
really was a carbon copy then it is something
like 400 questions had been asked of him at that
stage. A further interview took place between 2.15 and 2.54, and that was conducted by Lade.
Again, very little in the way of anything
specific and both officers agreed that their
information was very slim or, in fact, one of them
said had no concrete information at all.
Now, this brings me to the first matter that I
wish to raise on the hearing of this application.
It consists in the role of the parole officer. The parole officer was present throughout these two interviews. Neither the parole officer - his name
is Pearce - or the applicant had any knowledge that
there was to be any further questioning. Now, at page 240 of the learned trial judge's judgment,
towards the bottom of the· page, he deals with
the question. This is at the end of the interview,
he says:
I am satisfied that the two police officers,
Pearce and the defendant then left the police station, whereupon Pearce asked the defendant
whether he was wanted any further. I am satisfied that the defendant told him that he was not wanted, and that the defendant voluntarily accompanied the two police
officers to his flat.
Now, just going down to half-way down the next
paragraph he refers to a voluntary return to the
police station, he says:
It is obvious that Nixon and Lade ascertained
at some stage before they went to the flat
that the South Australian detectives had
arrived, but I do not believe there was
anything sinister or unfair about their decision
not to tell the defendant what they knew until
they completed their own enquiries.
C2T26/l/MB 48 13/4/89 Hoare Now, the challenge we make is that there was a
deliberate falsehood involved with that-which was
not dealt with either by the trial judge or by
the Court of Criminal Appeal, which is that the
parole officer was allowed to go in circumstances
where the police knew that the very next thing that
would happen would be that the South Australianpolice would commence their inquiries.
McHUGH J: What is the point of this, what is it leading to, what is the bottom line?
MR GAME: The bottom line of this submission is that this amounted to a deliberate falsehood which resulted
in the parole officer not being present for the
record of interview with the South Australian police
in circumstances in which the police officers knew
that the South Australian police had arrived and
therefore by not saying to either the parole officer
or to Easton at the time when the parole officerwent,that the South Australian police had arrived,
that there was a deliberate falsehood. I mean, that is the submission in relation to that question.
(Continued on page 50)
C2T26/2/MB 49 13/4/89 Hoare McHUGH J: What do you· mean by a deliberate falsehood? They
just simply did not tell him.
MR GAME: Well, my submission is that they should have told
him because they - "Am I required? No". They knew
that he was required. He had been there for all of
these hours for this other questioning.
MASON CJ: But he addressed that question to the defendant and the defendant said "no" but that is just failure
to disclose on the part of the police, is it not,rather than a deliberate falsehood.
MR GAME: Yes. MASON CJ: It may be a deliberate failure to disclose and, I
suppose, you would say it is a strategum designed to,
perhaps, ensure the absence of the parole officer but
you have not got any findings that support that.
MR GAME: I have got no findings that support a strategum. All that I can refer to is the fact that they said nothing and allowed the parole officer to leave after some three or four hours of questioning. That put them on notice that he wished to have his parole officer present for questioning. They knew that the next
thing that would happen would be more questioning.That is as high as I can put it. The Court of Criminal Appeal disposed of the
point on the basis that the Northern Territory police
may be did not know at the time that the SouthAustralian police had arrived, and that is at page 279 and the point I make about that is that the trial judge
had made a finding to the contrary and there is noreason to disturb that finding. Now, that is all I wish to say about, the parole
officer which lrings me to the question of arrest.
MASON CJ: Well, now, Mr Game, before you proceed any further,
it might be appropriate if you addressed us on the question: why should special leave be granted in this
case? What is there about the submissions that you
propose to make that invest this case with the
appropriateness for special leave?
MR GAME: Well, in relation to the matters I have just put
there is - - -
DEANE J: Could I just add to that? MR GAME: Yes. DEANE J: And that in a context where there is no dispute, as I understand it, about the contents of the confession.
C2T27/l/SH 50 13/4/89 Hoare
McHUGH J: Could I add a further factor: that the trial judge said that even if he was unlawfully det?ined in the
exercise of his discretion he would have admitted
the evidence any way because it did not have any
effect on it.
MR GAME: Well, that is a proposition that, I would submit,
cannot be sustained because if he was lawfully
detained then he would have been taken and charged.
He would have been told he was under arrest, under
the relevant provisions of the NORTHERN TERRITORY
POLICE ADMINISTRATION ACT. He would have been taken and charged and he would have been asked, under
section 16 of the BAIL ACT, if he wanted to have
any third person present. So, to say that is to
ignore what the consequences of lawful arrest would
be.
With respect to the question of special leave,
we submit that, firstly, the question of arrest in
this case raises a question of special leave because,
without going into the facts in any particular detail,the police officers from South Australia said that as
soon as they saw E.astort, they intended to prevent him,
come what may, from leaving the police station and it
was found both by the trial judge and by the Court of
Criminal Appeal that he was not under arrest. So, it
raises - and the court sought to apply the reasoning of CONLEY's case to that question to the extent that
even though - and we submit this is contrary to REG V
SMITH - he knew that that would be the result of him
not answering questions, that his liberty was not
restrained. Now, we submit that that does raise a question of importance in relation to what is meant
by'arrest'~ The court has sought to use CONLEY's case as a definition of "arrest"; that is to say, the
whole question turning on the finding of the
voluntariness of the return to the police station.
We submit there are cases which demonstrate that a
person might return voluntarily to the police station
but still be under arrest once they are at the police
station. They may even be under arrest although they
believe that they are voluntarily complying with the police officers.
(Continued on page 52)
C2T27/2/SH 51 13/4/89 Hoare
MR GAME (continuing): Now, the facts are, we submit, in this case, that Easton's liberty was restrained in all respects other than that he was told th~t he was
under arrest. There was no other aspect of
his liberty to be restrained. He was back in the police cell; back in the interview room where he
had been all day. Whatever happened he would be
arrested at the conclusion of whatever sort of
interview took place because Kelso had decided
when he saw him that he would be arrested. Easton knew that that would be the result. He knew that his liberty was restrained so that, in our submission,
that does raise a question of importance, namely,the question of what is meant by "arrest". That is the question of arrest. The following question, the
JONES V DUNKEL question, is simply this. No explanation
was ever given by Nixon and Lade as to why they were questioningEaston other than that they had instructions from Green.
Now, that, effectively, locked the defence out
of any sort of inquiry as to whether or not the
inquiries were genuine. The trial judge drew an inference favourable to the Crown, namely, that
the inquiries were genuine. He drew another inference favourable to the Crown, namely, that Green had
instructions from Darwin to conduct this questioning.Again, it was an inference favourable to the Crown which,we submit, should not have been drawn. He was asked
to draw an adverse inference and he did not direct his mind to the question, the trial judge did not
direct his mind to the question at all.
The Court of Criminal Appeal disposed of that ground on the basis that although the court would
adopt a point of view of regularity in considering
the conduct of the police. They said that even if
Nixon and Lade were "duped" - was the word used by
the Court of Criminal Appeal - even if they were
tricked and it was a holding exercise which was at the direction of Green, it made no difference
because if Easton was duped, well, so were Nixon
and Lade. Now, in our respectful submission, that involves a question in relation to the proper application of the rules of evidence. It has a
real importance in this case because, as I said,
the defence was left in a position where there could
be no inquiry as to what the purpose of the
investigation was even although there were the
contents of these two records of interview and a
third conversation that went for something like
six hours, that demonstrated no purpose in the
police inquiries. That is the JONES V DUNKEL point.
DAWSON J: Did the defence seek to have Green called?
MR GAME: The defence did not say Green should be called. The defence said an adverse inference should be called
because Green has not be called.
C2T28/l/VH 52 13/4/89 Hoare
DAWSON J: Did they cross-examine about it or in some way indicate that they thought that he ought to be
called?
MR GAME: Well, they cross-examined on the question of where the
instructions came from and it was clear that the
instructions came from Green and not from Darwin.
The defence did not say in open court the Crown
should call Mr Green. But if there was to be any inquiry as to what the purpose of the investigation
was then that inquiry would have to be made of Green.
The third point that we say arises in this
special question is the manner in which the court
dealt with an objection based upon the first effective
question that Kelso asked of Easton. He showed him a photograph and he said he had reason to believe
that he was that person and Kelso said in evidence
that once he saw that photograph he collapsed, or
caved in - I forget the precise words. It was Kelso's
evidence that Easton subsequently admitted to him
that he committed all of the Northern Territory
offences, so it was the Crown's case that all of
the previous denials were false denials.
(Continued on page 53)
C2T28/2/VH 53 13/4/89 Hoare
MR GAME (continuing): Now, the Court of Criminal Appeal disposed of the voluntariness point o~ the basis
that:
This was no more than the legitimate
result of bringing about a lack of will
on the part of an offender to persist
with false denials in the face of strongevidence of guilt.
They continued:
This is not the kind of involuntariness
in questions structured by the law.
We submit that to give the proper meaning to
voluntariness, as reiterated recently by this Court recently in DUKE's case, that offends the principle that voluntariness is an exercise of free choice.
So there are, we submit, three special leave points.
I sketched those points. I cannot put the points any higher as special leave points.
MASON CJ: Is that all you want to say in support of the case for special leave?
MR GAME: That is all I wish to say in support of the case for special leave, yes.
MASON CJ: The Court will take a short adjournment in order
to determine the course it will take in this matter.
AT 12.28 PM SHORT ADJOURNMENT
C2T29/l/HS 54 13/4/89 Hoare
UPON RESUMING AT 12.31 PM: MASON CJ: Mr Solicitor, the Court need not trouble you in EASTON in so far as application for special
leave to appeal is sought in relation to the
challenge to the conviction in EASTON. In so far as the facts of the EASTON case in terms
of the challenge to the conviction raise a point
of principle the case is not a suitable vehicle
for the determination of any such point of principleand, for that reason, the application for special
leave to appeal on that point is refused.
Mr Solicitor, it is for you to reply in
relation to the sentencing question in both cases.
MR DOYLE: If the Court pleases, I hand up the outline
of submissions. Before I go to the outline I
would like to just begin on two or three preliminarymatters. The first is the question of special leave. With respect, I would not dispute that
the question of the proper operation of
section 302 is capable of giving rise to a point
warranting the grant of special leave as it can
and probably will affect the sentences passed
on virtually all persons hereafter. However,
in my submission, it is very questionable whether
this particular case is an appropriate one only
because these points were not articulated before the Court of Criminal Appeal and as the argument unfolded, in my submission, it became clearer
and clearer that all sorts of points of details
arise on which this Court, I would submit, would
be assisted if it had the vievSof the Court of
Criminal Appeal.
These fundamental challenges, and they are
fundamental challenges to the operation of the
section, have not been put to the court at all
and so it has not had the opportunity at all
to consider them or to consider how, if at all, what it has said here is to be reconciled with
what is in HARRIS's case and one conceivable
view is that the decision in HARRIS's case requires
reconsideration.
(Continued on page 56)
C2T30 /1 /ND 55 13/4/89 Hoare
MR DOYLE (continuing): In that case the court said that remissions under the new system come off - well,
that remissions do not come off the head sentence
if the prisoner goes on parole. All of the problems
adverted to, as I understand the submissions, would
disappear if a different view were taken becauseif remissions came off both then, if we take the instance of a man who, let us say, the judge has in mind to give him a head sentence of eight years
and a non-parole period of six, pursuant to section 302
we will assume he makes it 12 and nine. Now, the problem which has been identified is that if the
man takes parole and goes out after six years he
will spend six years on parole, whereas what thejudge had in mind was producing a situation where
he was on parole for three years. But if in truth
the remissions were to come off both head sentence
and non-parole period he would or could go out after
six years knowing that his head sentence only had
another three years to run.
So for a start one solution to all these problems
is a reconsideration of the decision in HARRISs case.
TOOHEY J:
Do you suggest that the remissions apply in respect of the period once parole has been granted,
Mr Solicitor?
MR DOYLE: No, Your Honour. I also intend to try to recap briefly on how the system operates. Perhaps I will
do that now in an effort to avoid confusion, and
I will not refer to cases or sections, just to keep
it simple. In my submission, under the present system, while the prisoner is in prison he can
earn 15 days remission for each month served so,
in effect, he can earn one-third off his sentence.
While he is sitting there in prison one cannot,
as it were, allocate those remissions either to the
head sentence or to the non-parole period but once
the non-parole period has expired, if he chooses
to accept the conditions of parole, then, as it were,
they immediately attach to it and so notionally,
and obviously as a matter of convenience, I would assume those in the prisons would keep an eye on
the non-parole period, would watch the remissions
in relation to them and when the time has arrived at
which the number of days served plus the remissions
earned equals the non-parole period they would say
to the man, "Do you want to go on parole?"
(Continued on page 57)
C2T31/l/MB 56 13/4/89 Hoare
MR DOYLE (continuing): Now, if he does go on parole, then he goes out, having got parole after the reduced
period but his head sentence stays exactly as
imposed by the trial judge. However, if he says, "No, I do not want parole and I want to stay in here to serve my sentence out or the conditions
are not acceptable" then, in effect, what theyhave to start doing is now crediting the remissions against the head sentence and now they have to start watching for the day when the period served plus the period of remissions equals the period of the head
sentence; that is how it operates. So, in a sense one can say that, until he makes a decision whether
to take parole or not, you cannot actually say the
remissions are coming off one or other. All youcan say is that once he has served a number of days which, when added to the remissions earned, equals the non-parole period, then he is in a position to make that choice, whether he will go out on parole and, if he makes that choice, then innnediately, as
it were, the remissions attach themselves to the
non-parole period. Once he is out, of course, no
more remissions are earned and the head sentenceremains unaffected.
DAWSON J: What you are suggested is that the remissions
alreadyearn.edwhen he goes out, as an alternative,
on parole should come off the head sentence.
MR DOYLE: Yes. HARRISs case, in effect, said they do not and the Chief Justice came to that view, having regard to
some relatively minor changes in wording but, in my
respectful submission, the reasoning is relatively
compelling but this problem, as I understand HARRIS's
case, was not addressed by the Court, even in HARRIS's
case because the particular problems that emerge nowin relation to section 302 obviously could not have
been anticipated.
(Continued on page 58)
C2T32/l/SH 57 13/4/89 Hoare
MR DOYLE (continuing): It may be, if all of these problems were put before the Court,that the deci~ion in
HARRIS's case would be reconsidered. All I am
putting is that that is one answer to the apparent
conundrum that my learned friend points to, that
if the judge, pursuant to section 302, does increase
the head sentence and non-parole period and if the
man takes parole then, becau$e remissions do not
come off the head sentence, he spends longer onparole than he otherwise would have.
So, my first submission is that none of these,
in a sense, fundamental points, which my learned
friend has put were put to the Court of Criminal
Appeal and I do not complain that we are not ready
to argue them, nor do I suggest that there are
any matters of evidence that we would want to
raise that, had the point been raised before, any
matters of evidence we would have put before the
court. We simply make the point that having regard
to, as it were, the way this matters requires one toget into the interstices of the remission system
and the CORRECTIONAL SERVICES ACT and the fact that
a decision of the Court might require reconsideration,
that it may not be that this is the appropriate
vehicle for sorting these matters out. Although, subject to that, I would not deny that the proper operation of the section is important in the
interests of the administration of justice, simply
because it will affect all sentences being imposed.
DAWSON J: There are not really any principles involved in it,
are there? It is a matter of statutory construction, really, that is all.
MR DOYLE: Yes, my concession about it warranting special leave is simply on the basis that it will affect all sentences
and, in my submission, that probably,- the fact
that it affects virtually all sentences imposed
in Australia, that alone, and that is the only basis, for a grant of special leave.
So that is my first - two points, really,
Your Honour, that this may not be the appropriate
vehicle for the grant of special leave; secondly,
a very brief recap on how the system words. Just on that point, Your Honour Justice Dawson gave the example
during the morning of one way to solve this problem
would be to give a man a 12-year non-parole period and also a 12-year head sentence. The
difficulty with that is that it would, in effect,
subvert the parole system because, if you did that to
him, after eight years he could say, "I don't want
parole because I walk out Scot-free because the
remissions - I can apply them to my head sentence."
C2T33/l/VH 58 13/4/89 Hoare
MR DOYLE (continuing)-: And so, even if you tried to get around it by saying, "Well, look, we'll give
the man 12 years and 3 months head, sente·nce and12 years non-parole", you would still produce a situation in which, after eight years, you
could say, "Well, I've now got a choice. I can go out on parole for four years, or if I serve
one more month I can go out scot-free and with
no parole at all."
DAWSON J: Justice Johnston had some answer to that but
it is not entirely compelling.
MR DOYLE: No, Your Honour. That perhaps goes back to my very first point that, as I understand it,
the views expressed by Justice Johnston in FLENTJAR
are not views consistently or regularly followed
or applied in sentencing. This is one of the
unfortunate things, not having the benefits ofthe view of the Court of Criminal Appeal. The
things he adverts to are possibilities but, as
I understand the position, the things he adverts
are not· the way in which, on a daily and routine
basis, sentences are imposed. Generally there
is a proportionality between the head sentence
and the non-parole period~ In the case of
prisoners who seem to have prospects on parole,
there is a reasonably wide ambit for the operation
of parole and a reasonably significant number
of years which will be spent on parole.
It may be what Justice Johnston says will
be a solution in cases here and there but, in
my submission, his view do not reflect the general
practices of the court. Two other preliminary points I would seek to make, Your Honours, just
as a background to the more detailed submissions:
the first is that, in my submission, much ofthe argument that has been put to the Court ignores·
what I submit is a fundamental point and that is
that the head sentence is the primary sentence.
Much of the argument, really, revolved aroundthe proposition that if section 302 is applied in the manner in which the court foreshadowed, or said it should be applied, people would spend
longer on parole than was really envisaged, and in
my submission, that is really to turn thingsaround a bit because the important thing and the primary thing is, "What is the head sentence?"
and then you move to the fixation of the non-parole
person. So if, pursuant to section 302, the judge says, "Well, I think this man should have
a head sentence of eight years and because of
remissions I am going to make it 12", that, ina sense, is a primary step that he is directed to and then to say, ''Well, because of its impact on non-parole you simply should not do this at all", is to really treat the fixing of parole as the primary step, where~s, in my
sub:nission, the first and fundamental step is that decision
as to the appropriate head sentence.
C2T34/l/ND 59 13/4/89 Hoare
TOOHEY J: Why should. he take the first step, Mr Solicitor, and say, "The head sentence would ordinc;irily
be in the order of nine years. Because of remissions,
I am going to impose a head sentence of 12 years",
when remissions would not be applicable in respect
of any period for which the person sentenced
was on parole? Could I just add to that, that
may be taking account of something which is not
encompassed by section 302, which looks to a
situation where the prisoner may be credited.
MR DOYLE: Yes. In my respectful submission, what Your Honour puts to me is, in a sense - to start
to move into the points argued by my learned
friend, Mr Game. My submission on why it is
appropriate is that if the judge takes the view
that a head sentence of, I will say eight - because
it conveniently increases to 12 - is the appropriate
head sentence, then that is what he should impose
because he is expressing his view as to the period of time which, under certain circumstances, should
be served in prison, namely, if this man, for
one reason or another, finishes serving out his
head sentence. And to do otherwise, because of the time the man may finish up spending on
parole because remissions do not get credited
to the head sentence if he takes parole, is to,
in my submission, start to confuse that firstand primary step determining the appropriate
head sentence by reference to the extent to which
that is then going to fetter your ability to
produce the most desirable non-parole period.
TOOHEY J: Except that it involves making an assumption
which is an assumption detrimental to the prisoner
and it is an assumption that may prove, in the
end, to be ill-founded.
MR DOYLE: Certainly, Your Honour. In my respectful submission,
the answer to that is, without wanting to seem
glib, that that is what Parliament, in effect,
has said he is to do. But, putting it in simple
terms, what it means is he is saying, "Provided you are a good prisoner you are likely to earn
the maximum remissions and so, basically, it
is up to you whether you can achieve that result."
In my submission, that is a perfectly comprehensible approach and Parliament has indicated, in effect,
that that is what it wants judges to do when
fixing the head sentences. So, I do not deny anything my friend has said; I simply submit that in a sense there is no injustice about it
and, as the judgments indicate, most prisoners
do, in fact, qualify for remission and most prisoners
do, in fact, get the maximum or close to it.
C2T35/l/SDL 60 13/4/89 Hoare
MR DOYLE (continuing): Obviously not all do and, 1n my submission, it is not in any sense an
0 We will make it 12 years and it is now up to you incomprehensible approach to sentencing to say, whether through earning the remissions you get
the 8 years" and, of course, then in a sense
what the judge is in truth perhaps saying is,"I'm imposing a sentence which means this man will spend at least 8 years in gaol, but if he does the right thing it should be no more." Your Honours, the only other preliminary point I wanted to make is I think Your Honour Justice McHugh said - I am not sure whether
Your Honour said, or said that it was implicit in my learned friend's argument - that section 302 was really declaratory of the position which applied
in sentencing before it was enacted. In my respectful submission, that is not so, and my learned friend has endeavoured to generalize from what was said in the decision in BRENNAN. In BRENNAN - if
I could just take the Court briefly to that becauseI would like to try to clear this point away - that is REG V BRENNAN,(1984) 36 SASR 78, and in particular at page 80 what the Chief Justice said was that - in the paragraph which begins
"The authorities". He first of all referred to the standard principle that the Court should . disregard provisions for ranissions, then he said that section 42i of the PRISONS ACT, which came in
in 1969:made it necessary for the South
Australian courts to qualify thatapproach in determining non-parole
periods -
and he adverted then to the fact that under the
then existing law remissions did not come off the
non-parole period, and about five lines down he says:
The provisions in the new Act which apply
remissions for good behaviour to the non- sentence remove the necessity for regarding good conduct remissions in fixing a non-parole period. There is no longer any obstacle to the application of the principle - parole period as well as to the head
et cetera.
C2T36/l/HS 61 13/4/89 Hoare
MR DOYLE (continuing): Now, in my respectful submission, all he was saying was for some years while remissions
were not applied to non-parole periods we were forced
to acknowledge the existence of the system of remissions to the extent that when we fixed a non-parole period we had to bear in mind at least
that head sentences could be reduced otherwise if
we fixed a head sentence of six and a non-parole
period of four the head sentence might expire before
the non-parole period had expired. So all he was saying is that circumstances, beginning in 1969,
forced them to qualify the general principle in
relation to remissions to that limited extent but,
as he says, that has now changed as of the amendments
he was referring to and thereafter the court was
reverting to the previous position that it had no
regard to remissions. Over the page, at page 81, in the paragraph which ends just above the mid point
of that page there is a sentence which begins:
I think, therefore, that the Court must,on
a s.4li(2a) application, ignore the actual
situation as to the remissions credited off
the head sentence, but it can hardly avoid
taking into account the legal provisionsprescribing the maximum remissions -
et cetera.
To that extent the position of the Court when
fixing a non-parole period under sub-s.(Za)
differs from its position when fixing a non-
parole period under sub-s. (1).
Again, as I understand him, what he was saying was,
"Well, when we act under subsection (1) we are now
back to the well-established principle that remissions
are ignored but if we are fixing a non-parole period
under subsection (2a) we still have to, in effect,
qualify the traditional position" and I think
non-parole periods under subsection (2a) were for:
sentences passed before the commencement of the amending Act.
That appears at the very top of page 81 and the
very bottom of page 80. So what he is saying - and
I am sorry this is so compressed - is from the time
of the relevant amendments we are back to the traditional
position that we disregard remissions for good
conduct. For a period of time after 1969 we had
to depart from that position to some extent. We no longer depart from the traditional position except
that when we are fixing non-parole periods with
respect to sentences passed some years back in the
time of the amending Act we still have to qualify our
position in the same way.
C2T37/l/MB 62 13/4/89 Hoare MR DOYLE (continuing): In my respectful submission, in
no sense can it be said from that that
generally in South Australia the courts were
in fact having regard to remissions; quite
the contrary. It was only for a limited periodof time and it was seen to be a limited
qualification to an otherwise general contrary
principle.
They are the only preliminary points I
wanted to make, Your Honours,and I was
proposing then to go to the submissions in
detail.
HA.SON CJ: It would be convenient now to adjourn. We will resume at 2.15, Mr Solicitor.
AT 12.53 PM LUNCHEON ADJOURNMENT
C2T38/l/JM 63 13/4/89 Hoare UPON RESUMING AT 2.15 PM:
MASON CJ: Yes, Mr Solicitor. MR DOYLE: If the Court pleases, turning to the outline of
argument, I do not seek to develop the points made
in paragraphs 1, 2 and 3. They were there in case
there was a submission that in some way the Court
had, as distinct from adopting a rough guide to a
level of sentences, fettered itself by too rigidly
applying a set term and so, while I rely upon those
submissions, I see no need to develop them in any
detail now. So, if I could turn to the submissions
as to section 302, and the point in paragraph 4 has
already been made in relation to REG V HARRIS. I would make just one further point: although, as I
said, if HARRIS were wrong and if remissions came
off both head sentence and non-parole period, that
would seem to cure the problem, it does not follow, of course, that HARRIS was wrongly decided and, if
one goes back to the pre-section 302 time, if HARRISwas wrongly decided, then different results would
flow on sentences because if one imagines ignoring
section 302, a man who got a head sentence of eight
years with a non-parole period of six pre-section 302,
the position would be that if he got maximum remissions
he would be eligible for parole after four years and
then would serve four years on parole.
If HARRIS is wrongly decided, the position is
then - and remissions come off both - he is still
eligible for parole after four years but serves only
two years on parole because his head sentence has now
reduced from eight years to six by the same two
years as the non-parole period was reduced.
Your Honours, turning then more directly to
section 302, in our submission it was well known prior
to that section was enacted that there was an element
of artificiality in the sentencing process because of the way in which remissions altered the impact of the sentence, both the head sentence and the non-parole
period.
(Continued on page 65)
C2T39/l/SH 64 13/4/89 Hoare
MR DOYLE (continuing) This had been referred to in a number of
judgments and I do not propose to read from them
but in paragraph 5 of the outline, I have referred
to three passages where comment is made· upon this
and, I think it was Justice Brennan in REG V WATT
who used the word "charade" to refer to the fact
that there were complaints that the system was
becoming something of a charade.
McHUGH J: In his second reading speech~ the minister seemed at
pains to deny the popular conception about the
whole matter; he was talking about remissions being
earned, not everybody got them.
MR DOYLE: Yes. As I understand it, Your Honour, the complaint really was not so much that remissions were got too
easily, although that may have been an element of
the complaint but, just that, if you look at the
person sitting in court hearing the judge, you couldsay, "Well, what is the reality here? The judge
says eight years and six, but the reality is that it
is a sentence which is likely to result in his
release on parole in four years." It was just the
disconformity between what the judge was pronouncing
in court and the realities and there may have been
that added complaint that people thought remissions
were automatic. But, in my submission, at least at
the judicial level, the complaint was that, from
the point of view of the judges, it was a bit of a
charade if they were specifying head sentences and
and non-parole periods knowing quite well that, in
one way or another, the actual periods may differ.
So, Your Honours, in that context it is clear, in my submission, beyond any doubt that section 302
is directed to that problem. Now, as I understood him, my learned friend, Mr Game, argued that, in effect,
it gave the judge a discretion whether to have
regard to the operation of remissions or not. In
my respectful submission, in that section, the
word "must" means literally must and, while there
may be some room for movement in terms of how you
have regard, it is my respectful submission that the
have that meaning but, in this case we are looking at effect of the section is that you must have regard and that is not because the words "have regard" always something, that is, the operation of the system of remissions which applies to virtually every sentence
passed. The only people who are not eligible for remissions are those serving first of all, indeterminate
sentences and, secondly, those with sentences of lessthan 12 months. So the Court is being told to have regard to sqmething that applies in virtually every
case and applies in the same way in every case.
C2T40/l/VH 65 13/4/89 Hoare DEANE J: But, Mr Solicitor, one problem is, when you go to
section 79 the statute tells you to have regard
to statutory provisions which provide~ remission
for good conduct at the executive discretion.
MR DOYLE: Yes. DEANE J: What the supreme court has done is effectively to turn those provisions on their head by converting
them into provisions which effectively increasethe sentence by up to 50 per cent for the absence
of good conduct. It is no longer, really, operating
as a remission system the way it was intendedto do and that seems to me to be - I appreciate Mr Game has not quite put it that way but that seems to me to be to be the crux of the problem.
MR DOYLE: Yes, Your Honour. Could I come to that in a moment.
DEANE J: Of course. MR DOYLE:
At the moment I am dealing with a somewhat broader submission which I understood my friend to make
which was that because it said '-'have regard"
an individual judge could say, "Well, in this
case I will not have regard at all". I would, with respect, put Your Honour's problem more
in the category of how you would have regard.At the moment I am just addressing my submissions to the question of whether you must, in fact, have regard, like it or not. McHUGH J: Do you support what the Chief Justice said in
DUBE, Mr Solicitor, because he said it must mean more than "have regard to". In DUBE, he said, in effect, it means that you must increase
the sentence which would otherwise have been appropriate.
MR DOYLE: Again, Your Honour, I would submit that both points are covered in what he says. When he says
it must mean more than "have regard", I take
him to mean, in effect, "You must take it into account. You cannot say, 'Well, having thought about the existence of the remission system in
this case, I am going to disregard it." His
second point,that you increase sentences by 50 per cent, is what I put in the category of then, how you have regard to it; how you implement it. And if I could just complete the prior point:
my learned friend referred in particular to
DORRESTIJN's case, which was a case dealing with
the South Au~tralian PLANNING ACT, and there
the words were "have regard" and the planning
authority was directed to have regard to the
principles in the development plan.
C2T41/1/SDL 66 13/4/89 Hoare
MR DOYLE (continuing): And in that context the court said, "Well, that means, in effect, you look at them,
you pick out the principals you think a~e relevant
and you really make what you see fit of them."
But, in my respectful submission, that was a
very different situation because the court was
dealing there with a plan in judgment and itwas dealing with a voluminous plan which contained
many principles, some of which were very broad,
some very narrow and specific, some of them might
even seem to be conflicting. And so, in that context, it made sense to say that "have regard"
meant, in effect, give to it,to the plan
such weight as you see fit and such weight tosuch parts of it as you regard as relevant.
In this context, in my submission, where
we are dealing with, as I have put a moment ago,
something which affects every sentence and affects
it in the same way in the sense that every prisoner
is equally eligible to earn remissions, it must
mean that you are to take it into account, not
that you may consider, at the very preliminary
stage, whether you will take it into account
at all or not.
Then, Your Honours, the question becomes,
"How do you have regard?", and the first point
I make as to that is paragraph 7 of the outline
which, I think, was not really contested. You really have to have regard to the ability to earn remissions, not to the behaviour of the
particular prisoner because that would be extremely
difficult to predict in any meaningful way in
advance.
When we come then to the question specifically
of how you have regard, it is my respectful submission
that what the Chief Justice said is right because
what Parliament, in my submission, has postulated
is a judge who has in mind, in accordance with
established levels of sentences, a head sentence
of eight years and a non-parole period of six -
before, it is easy to apply the fractions to and I will stay with them simply because, as them - he knows that that prisoner may earn remissions of up to one third but, in my submission,
in pronouncing a sentence of eight years andsix year, what he means is that is the appropriate - eight years - if we can focus on the head sentence -
is the appropriate level of punishment for thatoffence. Now that he can have regard to remissions,
he knows that the remission system may result
in that being reduced but if eight years is
appropriate, what it really means is eight years
C2T42/ 1 /ND 67 13/4/89 Hoare imprisonment and, in my submission, the way and,
indeed, the only way to achieve that is.to say,
"I will impose a sentence either of 12 years
or getting close to it".
McHUGH J: But that has the effect, does it not, that the section then reads, "shall have regard to the
fact that the prisoner will be credited with
15 days a month". The sections says, "have regard
| T42 | to the fact that the prisoner may be". |
MR DOYLE: Your Honour, I accept that and that is why I said either 12 years or getting close to it.
With respect, the Chief Justice is unlikely to
have meant, and, in fact, he denied this was
a simple rigid mathematical process. What he
was indicating was, in my submission, that because
the maximum remissions are one third of thesentence and because it is well known that most
prisoners get them and get close to the maximum,
it was proper for a sentencing judge to impose
a sentence which reflected those matters and,
therefore, a sentence of the order of 12 years
was likely to produce the situation that the
prisoner served eight. And if he served more
than eight he would do so only because he had
failed properly to avail himself of the remission
system.
DEANE J: But could I take you back to section 79? I mean, if you look at it, it is a remission system for
the benefit of prisoners. What you are saying is equivalent to adding to it subsection (6)
and saying, "To enable this remission system
to work every prisoner's sentence shall be increased
by 50 per cent", and what your argument is, that
a section which requires you to have regard to that remission system justifies you in turning
it on its head and saying, "To enable the remission
system to work, we'll increase everybody's sentence
by 50 per cent". What I am putting to you is, subsection (6),that I am suggesting, is quite
inconsistent with the present section 79. It just denies its whole nature.
MR DOYLE: Your Honour, I am not sure this is an answer to Your Honour so much as just a different way
of looking at it. In my submission, the position
really is that Parliament has said, not to enable
the remission system to work, but to make the
judicial process of sentencing accord with reality,the judges, if they think that eight years is
an appropriate sentence of imprisonment for an
offence, can impose an additional period reflecting
the remissions so that they know the prisoner
will serve at least eight years. And I acknowledge
C2T43/2/ND 68 13/4/89 Hoare contemplated it because it is difficult to conceive
the harshness of it because it may well mean
now that he serves more but, in my submission,
how else one gives effect to the direction in
the section other than to increase the sentence
by an amount which brings about the result that
despite the remission system he must at least
| T43 | serve the eight years the judge has in mind. |
DAWSON J: Is there not another answer to it than that,
that remissions are not really concerned with
appropriate sentences at all, they are not concernedwith the sentencing process, they are there as
a reward to encourage then to behave themselves
whilst they are in prison? You can achieve that
aim, whatever the sentence is, really, so that
you should really fix the sentence by reference
to sentencing principle and then you can add
the reward at the other end.
MR DOYLE: Yes, I am grateful to Your Honour. I would also, with respect, adopt that argument, that the remission system - it certainly cannot be divorced from the sentencing process and the
punishment system altogether but, as I understand
the cases and the writings in the texts, such
justification as it has is related to a large
degree, in fact, to management of the prisons
and so the remission system remains but the courts,
in my submission, are now imposing the sentences
which they regard appropriate and are imposing
what I would call real as distinct from nominal
sentences.
The· position in the past was that when the
court specified a sentence, the period served everyone knew may differ even though the court
was saying of its head sentence that this was
the appropriate period of punishment.
(Continued on page 70)
C2T44/3/ND 69 13/4/89 Hoare
TOOHEY J: That was because in most cases the period actually served, putting remissions ~side, would
be the non-parole period, assuming that parolewere granted at the end of that period.
MR DOYLE: True, Your Honour, but in fixing the head sentence, in my submission, and this comes back to the point
that the head sentence is the primary sentence
and in a sense the only sentence, the court had
to select a period of punishment which wasappropriate for the offence and while in
specifying a non-parole period it appointed a
time at which or after which the prisoner could
be considered suitable for release, in fixing that
head sentence it had to face the prospect that forone reason or another he might still serve every
day of it and for one reason or another might never
go on parole.
In my respectful submission, what Your Honour
put to me there rather reflects the criticism I
made of Mr Game, that it is starting to see the system
as really revolving around the non-parole period,
rather than as starting with the head sentence and
then seeing the non-parole period as really an adjunct,both (a) merciful, and (b) to encourage rehabilitation
which nominated a time after which the person could
be considered suitable for release, even though the
appropriate period of imprisonment had not beenserved or expired.
TOOHEY J:
If the situation is one that remissions do not apply to the period during which the prisoner is on parole, then how does the judge have regard to
that in terms of section 302? What he is required to have regard to is the fact that the prisoner may be credited with a maximum of 15 days of remission for each month served in prison, but not for each
month of the sentence which is not served in prison.MR DOYLE: Yes.
TOOHEY J: How does he accommodate that consideration? MR DOYLE: Your Honour, on my submissins he cannot, by which I mean there is no way in which he can construct
a sentence which will ensure that the non-parole
period at the preliminary stage he had in mind will
be served. In other words, to go back to the
example, if he has in mind a head sentence of
8 years and a non-parole period of 6 years, at that
stage he obviously has in mind notionally a 2 year
non-parole period. When he does what I suggest he should do, makes it 12 years and 8 years, he does produce a 4 year period on parole and there seems
to be no way of escaping that. The only answer to that I can make is that in my submission if one does
focus on the head sentence as the vital thing it
C2T45/l/HS 70 13/4/89 Hoare does, in a sense, fall into place, because he has
then said, "12 years is the appropriate head
sentence for this offence. The man will be eligible for parole after 8 years reduced by remissions,"
and now, of course, he is going to spend somewhat
longer on parole than he envisaged back at the
8 year and 6 year stage, but still it all relatesin a proper way to what he regarded as the proper
head sentence, because if he sees the proper head
sentence as 12 years, while it is a bit of a blip,
as it were, in the system, that the man now does
4 years on parole and not 2 years, when one bears
in mind that he has said all along that 12 years
is the appropriate head sentence, we are simply
producing the result that the man remains on
parole until the appropriate period of headsentence has expired.
So I, with respect, would put what I call
the blip as something that is in a sense a
slightly surprising result but, when one focuses
on the importance of the head sentenc~ fits in
because the head sentence is, as it were, the
period of time which potentially he may be required
to serve, and that is still the case. When one looks at it more broadly, there is a bit of a flaw
in what I put in the sense that if that man went
out on parole after 6 years he now remains liable
to serve a parole of 6 years, from the sixth year through to the twelth year. So if he did offend while on parole and went back into prison, he could
in the end obviously finish up serving a good deal
more than 6 years in prison, and may finish up
serving 8, 9, 10, 11 years, depending on what
happens.
Again, there is no way that he can finish up
serving more than the number of years the judge
thought appropriate as the head sentence; secondly, if he does go back into prison as a result of offending while on parole he immediately begins to
earn remissions again and if when he goes back in he
he will get the choice at a certain time of going is given a new non-parole period, then once again on parole or not. If he does not get a new non- parole period when he goes back in those new
remissions earned will again produce a situation
before year 12 arrives where he will be entitled to
go out because the number of days served, plusremissions, will now equal the total head sentence. (Continued on page 72)
C2T45/2/HS 71 13/4/89 Hoare
MR DOYLE (continuing): So I would, with respect, put to - not totally aside but, rather in the background
the one oddity that I concede that there is no
way of constructing a sentence which enables you
to say, "Well, he has got the right specified head
sentence, the right specified non-parole period and
he is also only going to remain on parole for the
number of years I originally had in mind when I was
back at the stage of eight and six" but, I submit
that that, when one looks at the importance of the
head sentence, is not something which would cause
one to say, "Well, if that is the result, this just
cannot be right". In my submission, it is a slight
oddity but not the sort of thing that compels one to
say that answer must be wrong if it produces that
oddity.
DEANE J: Even if he did go back after being on parole, he would still get the benefit of the first lot of remissions, would he not? I do not read HARRIS as preventing that.
I think that would be time served.
MR DOYLE: I think that is right, Your Honour, yes. It is hard
to keep au fait with all aspects of the Act. I am just trying to think - if he went out after six years
and offended again and went back in - I think that
must be correct, Your Honour, because still his
sentence expires when the number of days he has served
and the number of -days remission earned - yes.
DEANE J: If he had served six years, he has still served nine years for the purpose of - once you had taken the
remissions into account.
MR DOYLE: Yes. To keep it simple, if he was released on parole after six years, the very next day offended,
was taken straight before a court and sentenced;
then, when he went back in, he could say to himself~
"Well, at least I have got six years plus three years
of remissions under my belt" and so, yes, it will still
count. Of course, the likelihood is that when he goes
non-parole period because, if he has offended while on back in, in that situation, he will go back in with a new parole, the court is required,when sentencing him for the new offence, to fix a new non-parole period which relates to both the period remaining to be served on
the original head sentence and the new period of imprisonment imposed. So, Your Honours, I have really then, in answer
to those questions, covered point 8 which was that
oddity of the system when account is taken of remissionsand so my submission is that the judge is required to
have regard to the existence of the system, that is,
in no sense, discretionary,and that, when one considers
C2T46/l/SH 72 13/4/89 Hoare how he has regard, one is driven to the conclusion
that he was intended to and must have r~gard by
increasing the sentence to such an extent that one
can say, "Well, the prisoner will serve at least
about the number of years I originally had in mind -
in my example, the eight-year head sentence - and so
by increasing it to 12, I produce that situation and,
if he serves more than eight, it will be because of
his failure to earn the remissions.
In my respectful submission, the same approach
is then taken broadly to the non-parole period. In other words, section 302 operates in the same way. In paragraph 11, Your Honours, the cases which I have
set out there from none of which I wish to read, simply establish the basis upon which the non-parole period is fixed and show that the same matters are had regard to
as considered in fixing the head sentence but now one is looking at these matters in the context of
asking the question: what is the earliest time at
which this individual could be considered for release?
But it is still in the context of the head sentence
having specified an appropriate period for which he
might, depending on the circumstances, remain in
prison.
Could I just add to those four cases in
paragraph 11, Your Honours, three other references
on the fixation of non-parole periods. They are
REG V STEWAR~ (1984) 35 SASR 477, at 477 to 478;
REG V VAN BEELEN, (1984) 36 SASR 489,and REG V VON
EINEM, (1985) 38 SASR 2oi at 218 to 220.
So, Your Honours, they are my submissions as to
how he has regard to it and, in effect, it could be
said the position on my submissions we arrive at is
that now, when the judge specifies 12 years, he knows
the prisoner will serve at least eight and it is up
to the prisoner, in effect, after that as to whether
it is eight or something more.
(Continued on page 74)
C2T46/2/SH 73 13/4/89 Hoare
MR DOYLE (continuing): Again, in my submission, that is
not such an odd result that again would cause one
to say, "Well, Parliament could not pos·sibly have
meant that." In my submission, as a matter of
sentencing, that is a perfectly rational position
to adopt. The only other points I would seek to make, Your Honours, are perhaps point 9, which
I really touched on before lunch, that these particular
matters have not been considered by the court, that
is, in particular that slight disconformity that
arises with the length of the non-parole period.
And point 10, in my submission, it cannot be said
that the permanent head, as was argued by my friend,
is in any sense increasing sentences. I do not deny what Your Honour Justice Deane put to me,
that in a sense it is putting the system around
on its head but on the other hand the truth is
that still the judge imposes the sentence, that
remains the sentence and the most the permanent
head can do is, in effect, as he did before, to
in practical terms reduce the severity of it. But
the sentence remains as imposed by the court and
it is a question of whether as a result of the
conduct the permanent head does things which enabled
the man to be released from prison sooner than
would otherwise be the case.
So, Your Honours, for those reasons I submit
that the court's approach to section 302 was correct
and if there is any error in it, although not that
I would acknowledge it is an error, but perhaps the
court may not have made clearly enough .the point
that you just do not automatically go up by 50 per cent
and that you should bear in mind there is room for
tolerance there.
(Continued on page 75)
C2T47/l/MB 74 13/4/89 Hoare
MR DOYLE (continuing): But, in my submission, if any criticism
can be made it is limited to that. Your Honours, in my submisson, there is here no interference with
judicial independence or nothing contrary to the
notion of separation of powers. Whil~ in a sense,
the system is turned around, people are still doing
what they always did under it because remissions
were always granted and, if it is an interference
with judicial independence now then presumably 1 it was in the past. I do not seek to develop that point. Finally, Your Honours, on the case generally,
I am putting my submissions on the basis that the
Court is really confining itself to section 302 and is not concerning itself whether 12 or eight years
is an appropriate penalty for armed robbery and so
I do not seek to go to cases on what is the actual
right number of years for that offence.
Just one final point, Your Honours: my friend
referred to the fact that, in the case of Mr Hoare,
the Court of Criminal Appeal do seem to have made
a slight error in the sense that they thought he
had slightly less than three years to serve on his
previous sentence whereas, in fact, he had slightly
more. It was three years and about three months.
In my submission, that need not concern this Court because, whatever it was, the sentence they imposed
was due to cormnence at its expiry. If there were a
very significant difference between what they thought
and what the reality was, it is conceivable that they
might have fixed a different new non-parole period.
But one think that if they have underestimated in
total how long he has got to serve, the chances are
that they have gone a bit low with the non-parole
period, so, in respect, there could be no injustice.
The other possibility is, again in a case where· they thought he had one year to serve whereas, in
truth, it was ten, notions of totality may have
caused them once again, when sentencing for the
offence on parole, to impose a lesser sentence. But one could hardly suggest that overlooking three months would cause them to have imposed a lesser
sentence thanwas, in fact, imposed in this case.
(Continued on page 76)
C2T48/l/VH 75 13/4/89 Hoare
DEANE J: Mr Solicitor, if a Court of Criminal Appeal makes that sort of factual mistake and it has .significance,
surely they can correct it themselves? It simply
takes it back to them?MR DOYLE:
Probably, Your Honour, yes, but in any event the book indicates that the sentencing judge
knew the true position and so it was just an error, really, by the appellate court but perhaps that is not an answer. But, as Your Honour says,
one would think one could go back to them and
they could correct it. They are my submissions, if the Court pleases.
MASON CJ: Thank you, Mr Solicitor. Yes, Mr Game? MR GAME: If the Court pleases, may I take up a question
that Your Honour Mr Justice McHugh raised in relation to the question of earning remissions.
In the legislative package which brought in
section 302, which is number 69 of 1986, which
is included in the legislation which I have had
provided which is in with the CORRECTIONAL SERVICES
ACT, there were substantial amendments to
section 79 which brought about a very real change
in the way in which the remissions system might
operate. In particular, in subsection (3) of
the amending Act, the original subsection (3)
said that:
The Permanent Head shall not ..... take into
account unsatisfactory behaviour in respect
of which the prisoner is likely to be dealt
with under any other provision of this
Act or any other Act.
and that, obviously, limited to a very substantial
degree the operation of the remission system. Now, in the amending Act, in the same package
as the section 302 was introduced, subsection (3)
was deleted and replaced by another subsection (3)
which provided that:
The fact that a prisoner has been, or is liable tobe, punished under this Act or
any other Act or law for behaviour while
in prison does not preclude the Permanent
Head from taking that behaviour into account
for the purposes of subsection (2).
And that, in my respectful submission, indicated a
very real change of legislative approach to the
question of the earning of remissions. It indicated
that the legislature truly intended that remissions
would be earned for good behaviour and would
not be simply a formality.
C2T49/l/SDL 76 13/4/89 Hoare J:1R GAME (Continuing): Similarly, in amendment to subsection (1)
he provided that remissions would not apply at
all when the parole board revoked parole pursuant
to section 74 of the Act so that, taken together,
those provisions, coming as they do with section 302;
indicate achange of attitude in relation to the
granting of remissions. With respect to Your Honour Mr Justice Deane's comments in relation to the
question of turning the remissions system on its
head may I refer the Court to section 22 of the
ACTS INTERPRETATION ACT which provides simply that:
Subject to subsection (2) -
which has no operation here -
where a provision of an Act is reasonably
open to more than one construction, a
construction that would promote the purpose
or object of the Act ..... must be preferred
to a construction that would not promote
that purpose or object.
In my submission, the construction that the Court has placed on section 302 frustrates the purpose
of the remissions system. As to Your Honour Mr Justice Deane's question addressed to the
Solicitor-General in relation to whether or not
a prisoner would still be entitled to the remissions
that he had already earned if he committed an offence
whilst on parole, that conclusion depends upon the
proper construction of section 80 of the Act.
But it may be·that that is not the correct result
and it would suggest that FLENTJAR V WRIGHT is
wrongly decided because if Flentjar got out effectively
at the same time as he got his remissions one wouldexpect that for the balance of his remission or
non-parole period he would be liable to serve
the balance of his head sentence. Now, that is the principle upon which th2t sentencing decision
is predicated.
(Continued on page 78)
C2T50/l/MB 77 13/4/89 Hoare MR GAME (continuing): . So if Your Honour is right, it may be
that FLENTJAR V WRIGHT is wrongly decided. Finally,
in my respectful submission, there is no prospect
that HARRIS is wrongly decided. There is nothing
in the provisions which suggests that the remissions
system has any effect upon the total head sentence
when a prisoner is on parole and, in my submission,
it is plain enough from a .comparison of the relevant provisions with the provisions prior to
the amending legislation that HARRIS is rightly
decided.
The point that I was trying to make in relation
to the Court of Criminal Appeal's ascertainment
of the total sentence was not really a fine-tuning
point. I was just trying to make the .point that in principle the Court might have regard to the remissions that
were earned whilst the prisoner was on remand
awaiting sentence and what would be the real sentence
were that prisoner, in effect, sentenced on the first
day. I was not attempting to make anything further of it except to draw attention to the mathematical
error, so there is nothing further in that submission.
I may have been misunderstood in that. Those are
the matters that I wished to raise in reply.
McHUGH J: Mr Game, what do you say to the Solicitor's submission that, having regard to the absence of submissions along the lines that you have made here, in the Court of Criminal Appeal,this is not a suitable vehicle for special leave?
MR GAME: Well, Your Honour, the question that arise, arise
directly out of a series of decisions of the Court
of Criminal Appeal and the Court of Criminal Appeal
presumably was cognizant of all of those principles
when they gave these decisions in this case.
(Continued on page 79)
C2T51/l/VH 78 13/4/89 Hoare
MR GAME (continuing): The way in which this has come about is slightly unusual because the crucial
decision was the decision in DUBE AND KNOWLES
and the indication was that sentences would
increase, but it was not clear in what way, to
what extent. In EASTON's case, Easton was sentenced to 15 years with 11~ years non-parole
and the sentencing judge explicitly sought to
justify that sentence in his sentencing remarks
and in his remarks to the Court of Criminal Appeal
by reference to DUBE AND KNOWLES, that is to say having regard to section 302. So that in those circumstances - and an argument was put to the
Court of Criminal Appeal that section 302 could
not apply in that case, at least in fixing a non-
parole period, because he had committed two before
and two after and that submission was answered by
the Court of Criminal Appeal; but in that case,
rightly or wrongly, the position was that the
matter was a Crown appeal in which the sentencing
judge had sought to apply DUBE AND KNOWLES, and it
did not appear - I was counsel in that before the
Court of Criminal Appeal and I did not present a
fundamental challenge to the legislation there,
but it was not apparent that that was necessary
in the circumstances that I have outlines.
By the time HOARE's case came along EASTON was
an outstanding application for special leave in
this Court. Moreover, for the learned
Solicitor-General's submission to be of any weight
it would require the Court of Criminal Appeal to
reconsider their own decision in HARRIS's case
and, in my respectful submission, it is completely
unarguable that HARRIS's decision is wrongly
decided.
(Continued on page 79)
C2T52/l/HS 79 13/4/89 Hoare MR GAME (continuing): It should also be understood that it
was the Attorney-General in the person of the
Solicitor-General that sought this specific
raise of 50 per cent in sentences. So although it has not been explicitly answered, it is a
process which has taken place fully cognizant
of the law as it stands in relation to theoperation of the remissions system. That is
really all that I would seek to say in relation
to that question, if Your Honour pleases.
McHUGH J: Thank you. MASON CJ:
Thank you, Mr Game. Yes, Mr Solicitor? MR DOYLE: Could I correct something I said, Your Honours? In answer to Your Honour Justice Deane I agreed
that if a prisoner went back into gaol, having
offended on parole, remissions earned originally
would count. My learned junior tells me that she is not so sure that is right and she tells
me that one view has been taken and that is that
section 75, which is relevant on this point in
addition to the section my friend just referred
to, when it says he is liable to serve the
unexpired balance of his sentence,that it refers justto the six years left and that you do not, as it
were, look at the whole thing. I may not have accurately stated the position.
DEANE J: I have probably raised a problem we do not have to deal with, Mr Solicitor. MR DOYLE: Hopefully, Your Honour. There are two cases
on our list which I have not checked, but she
tells me may touch on that point: REG V SLATER, (1984) 36 SASR, 524 and REG V HUBATKA,
(1988) 141 LSJS, 375.
MASON CJ: Yes, thank you, Mr Solicitor. That Court
will take a short adjournment in order to determine
what course it will take in these matters.
T53 AT 2.57 PM SHORT ADJOURNMENT UPON RESUMING AT 2.58 PM:
MASON CJ: The Court will consider its decisions in these matters and will now adjourn.
AT 2.59 PM THE MATTER ADJOURNED SINE DIE
C2T54/l/JM 80 13/4/89 Hoare
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