SUMMERS v STATE of SA No. SCGRG-97-668 Judgment No. S6576

[1998] SASC 6576

Summers v State of SA

Millhouse J

This is an application by the Plaintiff, Edward Ray Summers, a prisoner at Mobilong, seeking a writ of habeas corpus ad subjiciendum.  The Plaintiff pursues an order for an earlier release date than that specified by the Department of Correctional Services.  Submissions  on his behalf have been made by another prisoner, Robert Wayne Collins.

The Plaintiff had been convicted of Wounding with Intent to do Grievous Bodily Harm in August 1986.  The head sentence was three years and eight months with a non-parole period of one year and eight months.  He had been on parole but this was cancelled for a breach of the reporting and residence conditions on 14 December 1987.  In April 1989 Justice Duggan sentenced the Plaintiff to 9 years 11 months for armed robbery, this was to be served cumulatively upon the sentence he was already serving  for the previous offence.  Justice Duggan set a new total non-parole period of 8 years and 6 months.  In the District Court, the Plaintiff was later sentenced by Judge Birchall to two years  to be served cumulatively, for larceny and common assault.  The judge extended the existing non-parole period by one year nine months.  Having been sentenced by Judge Birchall the Plaintiff had a total head sentence of 14 years 2 months and 21 days and a total non-parole period of 10 years 3 months, both commencing on 27th January 1988.

The Plaintiff in submissions argued that;

a) his head sentence was incorrectly calculated because the previous sentence had a lower unexpired balance than that understood by the Department of Correctional Services.

b) that the effect of the Truth in Sentencing legislation [Statutes Amendment (Truth in Sentencing) Act 1994 and the Statutes Amendment (Correctional Services) Act 1995] was that he was entitled to have his head sentence and non-parole period reduced by the amount of remissions earned up to 1 August  1994 (the day on which Truth in Sentencing  came into force)    and the maximum amount of remissions expected to be earned up until the expiry of the non-parole period.

c) that notwithstanding Truth in Sentencing he was entitled to continued remissions until 10 years 3 months passed 27th January 1998 (as he expressed it in an affidavit).

d) the number of industrial remissions had been incorrectly attributed to his prison card.

The Plaintiff contends that the combined effect of the first two submissions is that he should have been released on automatic parole in mid June 1994.

A similar factual situation was discussed in Owen v State of South Australia (unreported judgment of Debelle J, delivered 2 February 1996, Judgment No. S5451).  In that case Debelle J dismissed the application for habeas corpus. 

The combined effect of the two pieces of Truth in Sentencing legislation, was to repeal the remissions system under which the Plaintiff was issued with his "Prisoner Remission Advice".  In its stead, prisoners in the Plaintiff’s position, who were sentenced before 1 August 1994, would have both their non-parole and head sentences reduced by the number of days of remission already credited and the maximum amount of remissions which could have been earned under the repealed sections.  The maximum amount of remissions was said to apply only to the non-parole period of the prisoner’s sentence:  it was not to apply to remissions which could have been earned while a prisoner was in prison during the period in which he was eligible to apply for parole.

With regard to the dispute over the addition of the unexpired sentence for the earlier crime of Wounding with Intent to do Grievous Bodily Harm, the Plaintiff first submitted that the error was based on the amount of remissions earned on that earlier sentence. The Plaintiff had been sentenced on 5 August 1986 to 3 years 8 months imprisonment for the offence of Wounding with Intent. A non-parole period of one year 8 months was set. The sentence commenced on 5 August 1986. On December 1987, the day when his parole was cancelled, one year and four months and nine days had passed since the Plaintiff started serving his sentence. The Plaintiff had been released on parole due to the remissions earned while he was in prison. He asserts that this should be taken to mean that from the date of his release on parole, he had served the total non-parole period of one year and eight months. This is the same as asserting that the remissions he earned should be taken as a reduction of the head sentence of the Wounding with Intent conviction. This issue was dealt with in R v Harris (1984) 36 SASR 302. In considering Part IVB of the Prisons Act, 1936-1983, King CJ said:

"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 remissions to the expiration of the period of the head sentence, unreduced by any good conduct remissions, as fixed by the sentencing judge."

Bearing in mind that s79a of the Correctional Services Act came into operation only on 30 September 1992, remissions credited to the Plaintiff only went to reducing the non-parole period of the sentence for Wounding with Intent. It did not reduce the head sentence. Therefore, the ‘balance of the sentence’ to be served, calculated under s73 of the Correctional Services Act is the three years eight months sentence less the one year four months and nine days which is the period between his incarceration and his breach of the parole conditions: the two years three months and 21 days sentence calculated by the Defendant is correct.

The Plaintiff in his submissions asked the court not to place a blind reliance on the records of the Department of Correctional Services.  The Defendant in supporting its case has produced many other records including Cabinet documents and hand written copies of documents.  After a careful examination of all these documents, I cannot find any error in the industrial remissions or indeed any other remissions granted to the Plaintiff as recorded by the Department of Correctional Services.  The Plaintiff has not been able to produce any evidence to support his calculations and has not shown any formulae which would indicate that a miscalculation of his sentence and parole release dates has occurred.

The Plaintiffs application is dismissed.