R v HAYLES - [2018] SASCFC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAYLES
[2018] SASCFC 141
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Peek)
24 December 2018
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Application by Director of Public Prosecutions for permission to appeal against sentence – question of statutory construction of s 96(5)(a) of the Sentencing Act 2017 (SA) – s 96(5)(a) requires a court suspending a sentence of two years or more for a prescribed designated offence to specify a period of imprisonment to be served which, if a non-parole period has been fixed, “must be a period that is one-fifth of the non-parole period fixed” – whether the reference to “a period that is one-fifth of the non-parole period” is to be read as requiring the specified period to be exactly one-fifth of the non-parole period.
Held: Vanstone J (Kelly and Peek JJ agreeing) refusing permission to appeal:
The provision is to be read as requiring the Court to specify a period that is a minimum of one-fifth of the non-parole period.
Permission to appeal is refused.
Sentencing Act 2017 (SA) s 47, s 96(1)-(5), s 114(5)(c); Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill 2014, referred to.
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1988) 194 CLR 355, applied.

R v HAYLES
[2018] SASCFC 141
Court of Criminal Appeal: Vanstone, Kelly and Peek JJ

VANSTONE J: Following a plea of guilty to aggravated causing harm with intent to cause serious harm – a prescribed designated offence – the respondent was sentenced by a Judge of this Court. The sentence imposed was four years and 11 months imprisonment with a non-parole period of two years and three months. That sentence was suspended pursuant to s 96(5)(a) of the Sentencing Act 2017 (SA). In suspending the sentence of two years or more for such an offence, the Judge was obliged to direct that the defendant serve a specified period of imprisonment in prison, being one-fifth of any non-parole period fixed. The respondent had already served more than one-fifth of the non-parole period, and indeed a little more than the whole non-parole period. Accordingly the Judge suspended the remainder of his sentence.
The Director of Public Prosecutions now applies for permission to appeal against the sentence on a single ground: that the judge erred in fixing the specified period of imprisonment to be served as a period greater than one-fifth of the non-parole period. It is put that the specified period of imprisonment to be served should have been exactly one-fifth of the non-parole period, which was five months, one week and five days.
Background
After a relationship between the respondent and the victim lasting about a year, the victim ended the relationship. The respondent continued to visit the victim and her two young children at her home. During one such visit the respondent became upset. While her back was turned, the respondent stabbed the victim several times in the back of her head, and in her stomach. He was arrested on that day, 28 May 2016. He was charged with attempted murder and, in the alternative, aggravated causing serious harm with intent to cause serious harm. On 23 July 2018, the respondent pleaded guilty to the alternative charge, which plea was accepted by the prosecution in satisfaction of the Information.
Section 96(1) of the Sentencing Act allows for the suspension of a sentence of imprisonment. Section 96(2) enacts certain standing bond conditions. Subsection (3) sets out circumstances in which a sentence of imprisonment may not be suspended. This subsection applied to the respondent because his was a prescribed designated offence and the term of his sentence exceeded two years. Subsections (5) and (6) provide circumstances in which a court may, despite ss (3), suspend all or part of a sentence. Subsection (5) is the provision under consideration. It provides:
(5)Despite subsection (3)(b), if a defendant is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence, the sentencing court may, by order—
(a) direct that the defendant serve a specified period of the imprisonment in prison (which, if a non-parole period has been fixed in respect of the defendant, must be a period that is one-fifth of the non-parole period fixed); and
(b) suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
(italics added)
The Judge referred to s 96 and its application to the respondent. She said:
However, s 96(5) provides that if a person is sentenced to a period of imprisonment of two years or more for a prescribed designated offence, the Court may direct that the person serve a specified period of imprisonment in prison, which must be at least one-fifth of the non-parole period fixed and suspend the remainder of the sentence on condition that the person enter into a bond to be of good behaviour.
(italics added)
Arguments on appeal
Ms Telfer SC, for the Director, argues that the Judge erred in reading into s 96(5)(a) of the Sentencing Act the words “at least”. It is said that the provision obliged the Judge to set a period of imprisonment that was exactly one-fifth of the non-parole period. The Judge was not permitted to direct that the period of imprisonment to be served was more than one-fifth of the non-parole period.
Ms Telfer contrasted the obligation upon the Court imposed by this provision, where a non-parole period was fixed, with the area of discretion reserved to the Judge where no non-parole period was fixed. In the latter instance, the Judge could specify a period of imprisonment to be served, unrestricted by the one-fifth rule. It was argued that the subsection thereby offers two pathways to the sentencing judge and, by the second of those, a discretion as to the period of imprisonment to be served, in circumstances where no non-parole period is fixed.
Counsel argues that, whereas s 47 of the Sentencing Act imposes an obligation to set a non-parole period in the usual case, s 47(e) allows a court to decline to do so in certain specified circumstances, as well as in “any other circumstance”: s 47(iv). It is put that a court’s wish to specify a period greater than one-fifth would answer the description of “any other circumstance”.
Ms Telfer argues that s 114(5)(c) of the Sentencing Act supports her construction of s 96(5). Relevant parts of s 114(5) provide as follows:
(5)If a court revokes the suspension of a sentence of imprisonment, the court may make any of the following orders:
…
(c) in the case of a probationer whose sentence of imprisonment was partially suspended under section 96(5) and even if the term of the sentence now to be served in custody is less than 12 months—an order fixing or extending a non-parole period taking into account the time spent in custody by the probationer before being released on the bond.
…
Ms Telfer suggested that s 96(5) accommodates the Court declining to set a non-parole period to give itself greater scope in fixing the specified term, safe in the knowledge that if there is a breach, a non-parole period could be set later. In those circumstances the specified period to be served could be any part of the head sentence. Then, if the bond were breached, under s 114(5)(c) the Court could fix a non-parole period which could also take into account the time spent by the probationer prior to release on the bond. In that way the “dead time” spent in custody by a person in circumstances comparable to the respondent’s could be accounted for.
Consideration
The issue to be determined is one of statutory construction. The primary object of statutory construction is to construe the subject provision so that it is consistent with all the provisions of the statute: Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1988) 194 CLR 355 at [69]. The majority in that case further stated at [78]:
…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
In my opinion the interpretation of the wording advanced by Ms Telfer focuses on the literal meaning to the exclusion of considerations of context, purpose and consequences. Although, having said as much, even taking a literal meaning, it could be argued that the text itself means at least, or not less than, or a minimum of “one-fifth of the non-parole period fixed”: s 96(5)(a). That this is the correct understanding is fortified by reference to s 96 as a whole. Section 96 provides a general rule that sentences falling within the categories provided in subparagraphs (a) to (d) may not be suspended. As already observed, ss (3)(b) applies to the respondent. However, s 96(5) qualifies the general rule in certain cases. In those cases part of the sentence may be suspended, but only after a specified period of any non-parole period has been served. That period is one-fifth of the non-parole period. Against this regime it would be surprising, to say the least, if ss (5)(a) were taken to require that the specified period be exactly one-fifth of the non-parole period. Given Parliament’s obvious intention to regulate such sentences in such a way as to prohibit complete suspension of them, it is difficult to see what interest Parliament would have in obliging the Court to fix a specified period at such a low proportion of the non-parole period. On the other hand, to interpret the words as meaning not less than one-fifth is in keeping with the obvious purpose of s 96.
This interpretation is also supported by reference to the second reading speech made by the then Attorney-General upon the introduction of the Bill containing amendments to the progenitor of s 96, being s 38 of the Sentencing Act. That Bill was entitled the Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill, which became the Amendment Act of the same name, Act No 10 of 2014. The Attorney-General, the Hon J Rau, then said (Parliamentary Debates, House of Assembly, 8 May 2014, page 125):
The aim of this reform is to restrict the ability of the sentencing court to wholly suspend a sentence of imprisonment and to ensure that serious violent offenders in receipt of a sentence of imprisonment of two years or more actually serve some time in prison.
It is plain that the mischief sought to be addressed was total suspension of sentences of serious, violent offenders. In this context it is counterintuitive to suggest Parliament’s aim would be to put a cap on periods to be served.
Ms Telfer calls in aid s 114(5)(c) arguing that it contemplates a situation where a judge had declined to set a non-parole period and therefore had an unfettered discretion to set a specified period of imprisonment. If the defendant were to breach the good behaviour bond associated with the suspended sentence, the court would have a discretion to fix or extend a non-parole period. In this way, the interplay of the two sections was said to allow deferral of the setting of a non-parole period until such time as the bond might be breached.
In my mind this aspect of the argument is unmeritorious as well.
Section 47 of the Sentencing Act deals with the duty to set a non-parole period. Section 47(5)(e) sets out the circumstances in which a court may decline to fix a non-parole period. It provides:
47(5)(e)a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—
(i)the gravity of the offence or the circumstances surrounding the offence; or
(ii)the criminal record of the person; or
(iii)the behaviour of the person during any previous period of release on parole or conditional release; or
(iv)any other circumstance.
Plainly subparagraph (iv) is to be read in the context of the preceding subparagraphs and the section as a whole.
The decision to set a non-parole period and to determine its length is logically antecedent to the decision to suspend a sentence wholly or partly. I consider it would be quite wrong for a judge dealing with a defendant whose situation is governed by s 96(3) and (5) to decline to set a non-parole period either to avoid the suggested obligation to specify a period to be served of exactly one-fifth, or taking comfort from the power to later set a non-parole period under s 114(5)(c) and, at that point to take into account time previously served. It is hard to accommodate a reason of that kind within the kind of circumstances given in s 47(5)(e)(i) to (iii).
For these reasons I consider that the appeal should not proceed. The Judge correctly interpreted the obligation imposed upon her by s 96(5)(a) of the Sentencing Act as one of specifying a period of imprisonment which was at least one-fifth of the non-parole period.
Conclusion
Section 96(5)(a) of the Sentencing Act requires a court suspending a sentence of two years or more for a prescribed designated offence to fix a specified period of imprisonment to be served which, if a non-parole period has been fixed, must be a minimum of one-fifth of that non-parole period.
The arguments advanced in support of a more prescriptive interpretation of the subparagraph are without merit.
I would refuse permission to appeal.
KELLY J: I agree.
PEEK J: I would refuse permission to appeal. I agree with the reasons Vanstone J had written.