R v Director of Corrective Services - [2015] TASSC 24

[2015] TASSC 24

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Director of Corrective Services [2015] TASSC 24

PARTIES:  THE QUEEN
  v
  DIRECTOR OF CORRECTIVE SERVICES

STARLING, Michael Douglas; ex parte

FILE NO:  568/2015
DELIVERED ON:  15 June 2015
DELIVERED AT:  Hobart
HEARING DATE:  15 June 2015
JUDGMENT OF:  Wood J

Edited version of reasons

CATCHWORDS:

Criminal Law – Sentence – Post-custodial orders – Remissions – Other States and Territories – Meaning of Corrections Regulations 2008, reg 22 – "Total period of imprisonment".

Corrections Act 1997 (Tas), ss 86, 90.
Corrections Regulations 2008 (Tas), reg 22.
Aust Dig Criminal Law [3432]

REPRESENTATION:

Counsel:
             Applicant:  J Crotty
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Crotty Legal
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 24
Number of paragraphs: 30

Serial No 24/2015
File No 568/2015

THE QUEEN v DIRECTOR OF CORRECTIVE SERVICES;
ex parte MICHAEL DOUGLAS STARLING

REASONS FOR JUDGMENT WOOD J
15 June 2015

This is an application brought by Michael Douglas Starling for relief similar to mandamus, directed to the Director of Corrective Services, seeking that the Director correctly apply the provisions of the Corrections Regulations 2008 ("the Regulations") in relation to the granting of remissions. Mr Starling is presently serving a three-month suspended term of imprisonment which was activated on 8 December 2014, and a six-month term of imprisonment for new offences, which was the subject of re-sentencing by Blow CJ on 5 June 2015. The sentence of six months was ordered to be served cumulatively to the sentence of three months. The applicant has been granted a total of two months' remission of these sentences. An application was brought by the applicant to amend the re-sentence, to provide that the total period of imprisonment to which the applicant was sentenced is nine months, so that the applicant would be eligible for a remission of three months. This application was refused by Blow CJ on 11 June 2015. His Honour noted that the issue of the interpretation of the Regulations by the Director was a matter for administrative law proceedings.
The applicant now contends that the correct construction of the Regulations would make him eligible for three months' remissions of the sentences as they stand. It is contended on behalf of the Director that the effect of the Regulations is that the applicant could not be entitled to remission of more than two months. The issue is one of statutory interpretation. If the applicant is successful in this application, he would, as of 4 June 2015, be eligible for release subject to the exercise of the Director's discretion.

The legislation

The provision under scrutiny is reg 22 of the Regulations, which provides:
"22 Remission
(1) For the purpose of section 86 of the Act, a remission of the whole or any part of a prisoner's sentence is not to –
(a)exceed 3 months if the period of imprisonment to which the remission relates is imposed after 1 January 1994; and
(b)exceed one-third of the total period of imprisonment to which a prisoner is sentenced; and
(c)operate so as to reduce the total period of imprisonment served by a prisoner to less than 3 months.
(2) Remission of sentence is not to be granted to a prisoner who is –
(a)convicted of escape or attempted escape in respect of that part of the prisoner's sentence served up to and including the day on which the escape or attempted escape was made; or
(b) sentenced to a total period of imprisonment of 3 months or less.
(3) The Director is not to grant a remission of sentence to a prisoner if that remission would operate to reduce the total period of imprisonment served by the prisoner in respect of that sentence to a period that is shorter than any non-parole period specified in an order made in respect of that prisoner under section 17(2)(b) of the Sentencing Act 1997."
A key issue is the operation of subregs (1)(a), (b) and (c), and 2(b).
The Regulations are made pursuant to s 90(2)(d) of the Corrections Act 1997 ("the Act") which provides:
"90 Regulations
(1)     The Governor may make regulations for the purposes of this Act.
(2)     Without affecting the generality of subsection (1), the regulations may make provision for or with respect to –
…
(d)the mitigation or remission, conditional or otherwise, of the sentence of a prisoner as an incentive to, or reward for, good conduct while the prisoner is serving his or her sentence; and … ."
The Director is empowered to grant a remission of a sentence under s 86(2) of the Act.
"86      Remissions
The Director may grant to a prisoner a remission of the whole or any part of the prisoner's sentence pursuant to regulations made under section 90(2)(d)."

The question

The question that has been raised concerns the meaning of reg 22(1)(a), (b) and (c). In particular, what does the phrase "total period of imprisonment" in reg 22(1)(b) and (c), and (2)(b), mean? Is it to be interpreted to mean the total period of imprisonment imposed in relation to any given sentencing order ("per sentence"), or is it to be interpreted so as to relate to the sum of all periods of imprisonment that a prisoner is serving, encompassing cumulative sentences of imprisonment?
A consideration of the meaning of subreg (1)(a) also arises. The question is whether this applies in relation to any given sentencing order ("per sentence") or whether it relates to the sum of all periods of imprisonment, so that the maximum period of remission that might be afforded to any prisoner is three months.
It is clear that the Regulations are currently interpreted so that the phrase "total period of imprisonment" relates to periods of imprisonment imposed in relation to individual sentencing orders, and that reg 22(1)(a) is also applied "per sentence". As the Regulations apply to the applicant's sentences, therefore, the Director has determined that the applicant is eligible for two months' remission with respect to the sentence of six months. The approach that has been taken is that the Director considers that the applicant is not eligible for remission of the three-month sentence by operation of regs 22(1)(c) and 22(2)(b). It is considered that sentences of three months' duration or less do not attract remissions, even when imposed cumulatively to other sentencing orders.
The contention on behalf of the Director is that the opening words of reg 22 have significance, and the discretion to grant a remission refers to a remission of a sentence (whole or any part), and therefore the following subregulations are concerned with the individual sentence under consideration. It is implicit in this submission that the opening words have a limiting effect upon the words "total period of imprisonment".
The applicant contends that it is clearly intended that the phrase "total period of imprisonment" is different in meaning to "sentence", and therefore, subregs (1)(b) and (c) apply to the sum of all periods of imprisonment that a prisoner is serving and not to individual sentences where there are cumulative periods of imprisonment.

Application of statutory interpretation principles

The phrase "total period of imprisonment" is not defined in the Regulations or the Act. Its meaning has not been determined. While there has been reference in case law to the approach that has been taken by Corrective Services at the particular time to the scheme concerning remissions, the correctness of that approach and the scheme has not been the subject of authoritative determination: Plumstead v Browne [1998] TASSC 161; Parker v Buxton [2010] TASSC 18.
The general principles relating to the interpretation of legislation are applicable to the interpretation of delegated legislation: Collector of Customs v Agfa-Gavaert Ltd (1996) 186 CLR 389 at 398. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47], Hayne, Heydon, Crennan and Kiefel JJ said (omitting footnotes):
"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."
The context includes the Act under which the delegated legislation has been made: One.Tel Ltd v Australian Communications Authority (2001) 110 FCR 125 at 141.
I make the following observations about the ordinary and natural meaning of the words in reg 22. The opening words, "the whole or any part of the prisoner's sentence", reflect the terms of s 86(2) of the Act. The words should be given the same meaning: Acts Interpretation Act 1931, s 19. To my knowledge, the words in the Act have not been considered either. Regulation 22 is the nuts and bolts provision with respect to the Director's power to grant a remission of a sentence. It seems to me entirely open to read the subregulations that follow the opening words of reg 22 as limiting the Director's power to grant a remission with respect to a sentence, including with reference to matters extraneous to the sentence, for instance, other periods of imprisonment being served. The natural meaning of the phrase "total period of imprisonment" in subreg (1)(b) and (c) and also (2)(b), extends to an aggregation of periods. The words of the regulation as a whole would strongly suggest that "total period of imprisonment" is not confined to an individual sentence. Otherwise, I ask rhetorically, why was this phrase chosen, rather than the word "sentence"? There is, in my view, a clear indication in the text that "total period of imprisonment" has a meaning that is different to a "sentence". It may be noted that in other ways the limiting effect of the regulation looks beyond the instant sentence, and takes account of other considerations. For example, it takes account of a conviction for escape (reg 22(2)(a)) and the operation of parole (reg 22(3)).
While subregs (1)(b) and (c) and also (2)(b) are concerned with the "total period of imprisonment", subreg (1)(a) is not, and makes no reference to this phrase. While "period of imprisonment" is used in subreg (1)(a), it is only used to tie down the operative date of the scheme. The terms of subreg (1)(a) provide another limit or cap on remissions, this time with reference to the sentence as referred to in the opening words of subreg (1). The natural meaning to be attributed to the regulation, therefore, is that subreg (1)(a) is applied with respect to an individual sentence, even in the case of cumulative periods of imprisonment being served, while subregs (1)(b) and (c) are applied with respect to the aggregate of those periods in the case of cumulative sentences. Of course, in the case of only one sentence of imprisonment, then that represents the total period of imprisonment, and subregs (1)(b) and (c) are applied with respect to that sentence. In essence, the structure of and terminology employed in reg 22(1) potentially results in two different types of limitation, one type affecting the sentence of imprisonment in question, and the other, more expansive, encompassing the aggregate of cumulative or partly cumulative periods.
It is worth noting that this approach is consonant with the approach of the courts in other respects. The courts have held that a distinction in the Act or Regulations between a "sentence" and a "period of imprisonment" has significance, and the choosing of different words connotes a different meaning. Section 70 of the Act is one example: see Young v Wilson [2015] TASSC 16 at [46] and Devine v The Queen [2003] TASSC 52 per Slicer J at [13]. Thus, "continuous period of imprisonment" has been held to mean a term or terms of imprisonment served as a result of one or more sentences.
There is nothing else in the Regulations that undermines this interpretation of reg 22. Elsewhere in the Regulations, there is a distinction drawn between a sentence and period of imprisonment: see, for instance, regs 22(3) and 24. There is also nothing that I can see contained in the Act or the Sentencing Act 1997 which would be counter to this interpretation.
Whilst reg 22 commences with a focus on the Director's grant of a remission per sentence, I see no tension in interpreting that provision so that remissions are capped, in part, with reference to an aggregate period of imprisonment resulting from more than one sentence. Thus, it seems to me that there is nothing in the terms of the regulation which suggests that an aggregate or total period of imprisonment should not have a role with respect to the calculation of remissions.
The consequences of the various interpretations that are open are a matter that may be considered in interpreting the Regulations. For the purposes of assessing those consequences, and having regard to the submissions, I set out three ways that the Regulations may possibly be interpreted (noting that the second interpretation below accords with the natural meaning of the regulation):
1A remission must not exceed three months per sentence, and cannot exceed one-third of each sentence or reduce each sentence to a period of less than three months.
2A remissions must not exceed three months per sentence, and remissions cannot exceed one-third of the sum of all periods of imprisonment to which the prisoner is subject, or reduce the sum of all periods of imprisonment to which the prisoner is subject to a period of less than three months.
3Remissions must not exceed three months in relation to the sum of all periods of imprisonment to which the prisoner is subject, or exceed one-third of the sum of all periods of imprisonment to which the prisoner is subject, or reduce the sum of all periods of imprisonment to which the prisoner is subject to a period of less than three months.
The contrast in the outcomes produced by these interpretations can be seen when different sentencing orders of the same aggregate length are considered. It may be noted that an accumulation of sentencing orders may result from orders made by different sentencing courts, or by the exercise of discretion in imposing individual cumulative sentences, rather than a global sentence: Sentencing Act, s 11.
I shall consider the consequences of interpreting the regulation in each way by looking at a range of sentencing orders, each totalling 12 months' imprisonment:
a)        six cumulative sentences of two months' imprisonment;
b)        two cumulative sentences of six months' imprisonment; and
c)        one sentence of 12 months' imprisonment.
Adopting the first interpretation set out above, as urged by the Director, would result in eligibility for the following remissions:
a)        No remissions, because each sentence is less than three months in length.
b)        A remission of two months on each sentence; total remissions of four months.
c)        A remission of three months.
Adopting the natural meaning of the words, the second interpretation above, would result in eligibility for the following remissions:
a)        A remission of 20 days on each sentence; total remissions of four months.
b)        A remission of two months on each sentence; total remissions of four months.
c)        A remission of three months.
The third interpretation has the following consequences depending on the structure of the sentence:
a)        A remission of 15 days on each sentence; total remissions of three months.
b)        A remission of one month and 15 days on each sentence; total remissions of three months.
c)        A remission of three months.
While the third interpretation produces a consistent outcome and provides certainty in that each prisoner is entitled to three months' remission no matter the structure or length of their sentence, this interpretation is, as explained, contrary to the plain meaning of reg 22.
The interpretation pressed on behalf of the Director has a strikingly arbitrary impact when applied to cumulative sentences involving a short term of imprisonment, each three months or less. There is no eligibility for remissions in such a case. The second interpretation does not have this arbitrary consequence.
It is clear that, whatever interpretation is given, there is proportionately less reduction by reason of remissions in the case of long sentences where the maximum remission per sentence is three months. It may be observed that in reality often lengthy terms of imprisonment will be ameliorated by parole eligibility orders. Remissions have more limited operation in cases where non-parole periods apply, by virtue of reg 22(3).
The clear meaning of reg 22 and the difference in language in subreg (1)(a), as compared with (b) and (c), weigh against the interpretation that has been adopted by the Director. I conclude that the consequences of the interpretations I have adverted to are another factor weighing against that interpretation.

Conclusion

I conclude that the phrase "total period of imprisonment" encompasses aggregate terms of imprisonment, such as the aggregate of the three and six months' imprisonment imposed in this case. The operation of subreg (1)(a), by contrast, concerns individual sentences. The result of my consideration of the scheme is that the maximum remission which can be granted with respect to a single sentence is three months; however, this cap of three months is to be applied per sentence and not to the total period of imprisonment. There are two limitations with respect to the total period: remissions should not reduce the total period of imprisonment by more than one-third and the total period must not be reduced to a period of less than three months. These conclusions have implications for terms of imprisonment of three months or less, if they are to be served cumulatively to other periods of imprisonment. Here, by operation of the Regulations, the applicant may be eligible for remissions totalling three months, at the Director's discretion.
The relief is granted. The Director is commanded to apply the statutory scheme with respect to remissions according to law.