Supreme Court of SA|1996-04-24|Before: Prior JJ, Olsson J, Debelle J

EDWARD DOUGLAS OWEN v THE STATE OF SA R v EDWARD DOUGLAS OWEN No. SCGRG 96/179, SCCRM 96/155 Judgment No. 5574 Number of pages - 14 Criminal law - statutes (1996) 66 SASR 251 [1996] SASC 5574 (24 April 1996)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), PRIOR(2) AND OLSSON(3) JJ

CWDS (per Cox and Prior JJ) Statutes - Acts of Parliament - operation and effect of statutes - retrospective operation - interpretation - consideration of extrinsic matters

Statutory interpretation - Statutes Amendment (Truth in Sentencing) Act Amendment Act 1995 - whether court may have regard to Minister's second reading speech to ascertain the amending bill's purpose, or at least to ensure that Parliament had in mind cases such as the appellant's - authorities considered.

Statutes Amendment (Truth in Sentencing) Act 1994 s20; Statutes Amendment (Correctional Services) Act 1995 ; Criminal Law (Sentencing) Acts12; Criminal Law Consolidation Act s302, s353; Correctional Services Act 1982 , referred to. Workers Rehabilitation and Compensation Corporation v Lu (1995) 183 LSJS 193; Workcover Corporation v Summers, 2 November 1995, unreported, judgment no. 5278; State Government Insurance Commission v Paneros [1989] SASC 1711; (1989) 51 SASR 213, applied. Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977)51 ALJR 715; Devine v Solomijczuk (1983) 32 SASR 538, not followed. Wacando v Commonwealth of Australia [1981] HCA 60; (1981) 56 ALJR 16; Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 56 ALJR 240; Pepper v Hart [1992] UKHL 3; (1993) AC 593, discussed.

(per Olsson J) Statutes - Acts of Parliament - interpretation - operation and effect of statutes - retrospective operation

Appeal against order of Supreme Court Judge dismissing summons for writ of habeas corpus - appeal against original sentence imposed in 1989 pursuant to legislation at time of sentencing, appellant was entitled to remissions which would have qualified him for release in 1994, or if parole not accepted, in 1995 - appellant elected not to accept parole as there was a legitimate expectation of an unconditional release - Legislative changes in 1995 to Truth in Sentencing Act 1994 which prevented any reduction of sentence for prisoners serving an unexpired balance of term of imprisonment - effect of this amendment was that appellant not eligible for release until 1996 - whether Debelle J erred in finding the Truth in Sentencing Act amendment had retrospective operation - whether original sentence could be set aside - intention of legislature was to abolish remlsslons regime - Legislation had retrospective effect - court has no jurisdiction to prevent effect of amendment - decision by Debelle J correct appeal against order dismissing summons for writ of habeas corpus dismissed - appeal against sentence dismissed.

Criminal Law Sentencing Act s12; Correctional Services Acts66(1); Statutes Amendment (Truth in Sentencing) Act 1994 s20; Statutes Amendment (Correctional Services) Act s2, s4; Acts Interpretation Acts14d, s16(1)(c), s22, referred to. Watson v Marshall [1971] HCA 33; (1971) 124 CLR 621; Rodway v The Queen (1990) 169 CLR 615; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; Gribbles Pathology (Vic) Pty Ltd v His Honour Judge Allan and Anor (1992) 57 SASR 218; Liyanage v The Queen (1965) AC 259; Polyukhovich v The Queen [1991] HCA 32; (1991) 172 CLR 501; Gilbertson v The State of South Australia (1976) 25 SASR 66, discussed.

HRNG ADELAIDE, 11, 17 April 1996 #DATE 24:4:1996 #ADD 20:5:1996

Counsel for appellant: Mr S W Tilmouth QC with Ms M E Bollella and Mr N Vadasz

Solicitors for appellant: Nicholas Vadasz

Solicitors for Respondent State of SA: Crown Solicitor (SA)

Counsel for Respondent R: Mr B M Selway QC, Solicitor-General with Ms P M Barnett

JUDGE1 COX J The circumstances of these two related matters are fully described in the reasons of Olsson J. Mr Owen, who is the appellant in both cases, was sentenced in this Court on 16 June 1992 to nine years' imprisonment, with a non-parole period of seven and a half years, for manslaughter, with both sentence and non-parole period backdated to 23 November 1989. The learned Judge sentenced him, as indeed the law required, in the expectation that, subject to good behaviour, he would receive remissions from both his head sentence and his non-parole period in accordance with the regime then in force. On 1 August 1994 the Statutes Amendment (Truth in Sentencing) Act 1994 came into operation. It abolished the remissions system. Section 20 was a transitional provision dealing with prison sentences and non-parole periods imposed before the commencement of the Act. The section read - "A sentence of imprisonment (including a suspended sentence) imposed before the commencement of this Act and a non-parole period imposed before the commencement of this Act are, on the commencement of this Act, reduced - (a) by the number of days of remission credited to the prisoner or youth; and (b) by the maximum number of days of remission that the prisoner or youth could have earned after the commencement of this Act had this Act not repealed Part VII of the Correctional Services Act 1982."

Meanwhile, on 21 July 1994, the appellant had been told, in effect, by the Correctional Services Department that he could expect to be released on parole in December 1994 unless he chose not to apply for parole in which case he would stay in prison until his sentence expired in December 1995. The appellant decided not to apply for parole. He was therefore still in prison in April 1995 when the Statutes Amendment (Correctional Services) Act 1995 added two sub-sections to s20 of the 1994 Act so that s20 now read as follows

"(1) Subject to subsection (2), a sentence of imprisonment (including a suspended sentence) imposed before the commencement of this Act and a non-parole period imposed before the commencement of this Act are, on the commencement of this Act, reduced: (a) by the number of days of remission credited to the prisoner or youth; and (b) by the maximum number of days of remission that the prisoner or youth could have earned after the commencement of this Act had this Act not repealed Part VII of the Correctional Services Act 1982.

(2) If a prisoner or youth becomes liable to serve the unexpired balance of a term of imprisonment imposed before the commencement of this Act, no reduction of that balance is to be made under this section.

(3) In subsection (1), the 'maximum number of days of remission', in relation to a sentence of imprisonment (including a suspended sentence) in respect of which a non-parole period has been fixed, means the maximum number of days of remission that the prisoner or youth could have earned in respect of that non-parole period assuming that he or she was released in accordance with section 66(1) of the Correctional Services Act 1982 (as in force before the commencement of this Act), whether or not he or she is in fact released at the end of the non-parole period (as reduced under this section)."

Section 2 of the 1995 Act provided that the amendment to s20 should be taken to have come into operation on 1 August 1994.

On 11 October 1995 the Parole Board wrote to the appellant, noting that he had elected not to apply for release on parole at the expiration of his non-parole period in December 1994 and informing him that, by virtue of the 1995 amendment, his current release date was now 12 June 1996. The appellant was understandably dismayed. He did not accept the Parole Board's interpretation of the legislation. On 18 January 1996 he applied to this Court for a writ of habeas corpus on the ground that his sentence had expired on 13 December 1995 and that his continued detention was unlawful. Debelle J dismissed the application. He was sympathetic to the appellant but considered that the Parole Board's interpretation of the 1995 legislation was correct. The appellant appealed to the Full Court. We heard the matter on April 10 and reserved our decision. Afterwards the appellant's legal advisers considered it prudent to supplement the habeas corpus application with an appeal against the sentence itself in case that should prove to be the appropriate way to get their client out of prison. On April 12 the single judge gave the appellant an extension of time and leave to appeal and the same Bench, sitting as a Court of Criminal Appeal, heard the appeal on April 16. We reserved that decision also.

It will be seen, then, that the two matters are closely related and it is convenient to deal with them together.

In my opinion, Debelle J was right. Whatever might be said about s20 in its original form, the parties before us were agreed about the construction of the new sub-s(3) - that a prisoner in respect of whom a non-parole period had been fixed prior to the commencement of the 1994 Act was to be credited, in effect, with the maximum remissions that he would have received under the old system until, but only until, the normal time for his release on parole. The wholesale refashioning of prison sentences in accordance with a change in legislative policy is not unprecedented. See Radenkovic v The Queen [1990] HCA 54; (1990) 170 CLR 623. In my opinion, the section, as amended, validly and effectively applies to the case of the appellant. I would reject his submission to the contrary. I agree with the reasons of Debelle J at first instance and of Olsson J in the Full Court. The habeas corpus appeal must be dismissed.

The alternative procedure of an appeal against sentence assumes the validity of the amended s20 and its application to the case of the appellant, and therefore the failure of the habeas corpus application, but seeks to have the original sentence varied in order to bring it into line with the learned sentencing Judge's intention and expectation at the time. The Judge was obliged, by s302 of the Criminal Law Consolidation Act and s12 of the Criminal Law (Sentencing) Act, to have regard to any remissions to which the appellant might become entitled under the Correctional Services Act 1982, and it is plain from the sentencing remarks that his Honour made allowance for that when he sentenced the appellant to nine years' imprisonment. One may infer that his Honour considered that, subject to good behaviour, the appellant should and would complete his sentence in an appreciably shorter time than nine years, even if for one reason or another he should happen to serve the whole of his sentence in prison, and that is what would in fact have occurred had it not been for the enactment of s20 of the Truth in Sentencing Act, at least in its amended form. The effect of the section, it was submitted, was to increase the appellant's head sentence so that a sentence which was formerly unexceptionable can now be seen to be manifestly excessive. The powers of the Full Court under s353 of the Criminal Law Consolidation Act are wide enough to permit such an appeal and, given the plain injustice of the appellant's changed situation, the Court should not hesitate to use them.

The appellant's position is exceptional. Most prisoners are given a non-parole period and, when the time comes, accept the Parole Board's conditions, are duly released on parole and complete their sentences outside the prison walls. Transitional prisoners in this category are no worse off under s20 - indeed, they may be better off - than they would have been under the repealed remission scheme. There could be no question, therefore, of reducing the typical transitional prisoner's sentence on the ground that he is now worse off than the judge who sentenced him expected. There are some, however, who are worse off or who may become worse off before their head sentences expire. I refer to those transitional prisoners who did not receive a non-parole period in the first place or who, having been given one, did not for some reason take parole or, having taken it, committed an offence while on parole or were otherwise in breach of their non-parole conditions and so were returned to prison to serve out their sentences. The appellant is one of that class. He will spend longer in prison than the judge envisaged when he sentenced him. So, it is said, he is entitled now to have his sentence reduced, for it is the Court, not Parliament, that has the responsibility of sentencing offenders.

I have already held that s20 of the Truth in Sentencing Act is valid and that it applies to a prisoner in the appellant's situation. It does not affect him merely coincidentally or by a side wind. It does so by an enactment, the express and central subject matter of which are sentences of imprisonment and non-parole periods imposed prior to 1 August 1994. Section 20 does not alter any sentence of the Court, but it does have the effect of altering significantly in some cases the proportion of a prisoner's sentence that he will actually serve in prison. However, the meaning of the section is clear, in my opinion, and I think we must assume that Parliament realized what changes it was making. It may be very unusual, and generally undesirable, for Parliament to pass a law with retrospective effect that may in some circumstances prolong a person's stay in prison, but when it does so in unmistakable terms the courts, in my view, are obliged to give effect to the law. To reduce the appellant's sentence in the face of the plain intendment of s20 would be constitutionally possible but, I think, constitutionally wrong. Parliament is entitled to have the last word.

But, it was said, s20 must only have been intended to cover the general run of transitional cases. Even if the section, properly construed, catches the anomalous minority to whom I have referred, Parliament cannot have had those persons in mind when it enacted s20. They are the hapless victims of the section's generality and it would therefore be proper to review the original sentences in their particular case.

There would be considerable practical difficulties, I expect, in carrying out such a revision, perhaps not in the appellant's case but certainly in some of the others, but in any event the argument breaks down, I think, at its first step. The anomalous group may be small but it was foreseeable - I understand that there have always been a few prisoners who decline to take their parole - and I would not readily conclude that Parliament, which I should expect to have been expertly advised, simply overlooked it. The Solicitor-General submitted that it was clear on the face of s20 that it was intended to apply to a prisoner in the appellant's situation but also argued that, if there was any doubt about it, the Minister's second reading speech could be referred to and that would make the position perfectly clear. He tendered a copy of Hansard for the House of Assembly debate on Wednesday, 15 March 1995, at pp1941-2, when the Minister for Correctional Services introduced the Statutes Amendment (Correctional Services) Bill of 1995, and we received the document subject to Mr Vadasz's objection.

The first question is whether we may have regard to the Hansard extract at all. It was for a long time the unqualified rule that the courts would not look to proceedings in Parliament or to parliamentary debates as an aid to the construction of a statute. In Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd [1977] HCA 38; (1977) 51 ALJR 715 it was held that the rule was too deeply entrenched to permit of any exception, even though this curial act of self denial might on occasions produce unintended results. Any change in the common law position was peculiarly a matter for Parliament. See, for example, per Mason J at 729. However, the tide was turning and in Wacando v Commonwealth of Australia [1981] HCA 60; (1981) 56 ALJR 16, at 25-26 and Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 56 ALJR 240, at 246-7, Mason J himself said that there were grounds for making an exception to the general rule for the case where a bill was introduced to remedy a mischief. His Honour considered that to have regard to the purpose for which the legislation was enacted, as stated by the Minister in charge of the bill, would conform to the rule that extrinsic material is admissible to show the mischief which a statute is designed to remedy. However, in Devine v Solomijczuk (1983) 32 SASR 538 a majority of the Full Court held, notwithstanding Mason J's observation, that it was not permissible for the Court to have regard in that case to a Minister's second reading speech even for the limited purpose of discerning the mischief that the legislation in question was designed to remedy. They relied on the Charles Moore Case. See per Mitchell J at 541 and per Zelling J at 545. Since that time, however, and despite the stand taken in Charles Moore, there have been many decisions in other State Courts and in the Federal Court in which recourse has been had to Hansard to identify the mischief or purpose of disputed legislation. See Pearce and Geddes, Statutory Interpretation in Australia (4th ed.) par.3.2. In Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 the High Court, in the absence of any objection, was prepared to assume for the purposes of that case that the Court was entitled to refer to ministerial statements to identify the mischief or purpose of a section of the Criminal Law Consolidation Act. In many places the curial development of the interpretation rules has been overtaken by statutory changes that go further than our Acts Interpretation Act, and an occasion for the High Court to re-examine its position on the common law rule as stated in Charles Moore has evidently not arisen. However, things have not stood still. In 1992 the House of Lords greatly modified the traditional rule so as to permit reference to Parliamentary material as an aid to statutory construction where the legislation is ambiguous or obscure or would lead to absurdity, and thereby departed radically from the decision in Hadmor Productions Ltd v Hamilton (1983) 1 AC 191 which was an authority that Zelling J had cited in Devine v Solomijczuk. See Pepper v Hart [1992] UKHL 3; (1993) AC 593. Closer to home, the Full Court of this State in two recent decisions, Workers Rehabilitation and Compensation Corporation v Lu (1995) 183 LSJS 193 and Workcover Corporation of SA v Summers, Judgment No. 5278, 2 November 1995, unreported, held that it was permissible for the Court to have regard to Hansard to ascertain the purpose which Parliament in the relevant legislation sought to achieve. See also the earlier decision of White J in State Government Insurance Commission v Paneros [1989] SASC 1711; (1989) 51 SASR 213, at 221-2. The judgments in those cases do not refer to the earlier decision of the Full Court in Devine v Solomijczuk or to the rule of practice that inhibits a Full Court from overruling an earlier decision of another Full Court unless it was plainly decided per incuriam or was inconsistent with higher authority or was, in the opinion of the second Full Court, clearly wrong. It may be that Devine v Solomijczuk was not cited to the Court in those cases or that the Court considered that the inhibitory rule of practice does not apply in this area. Be that as it may, the fact is that we are now faced with conflicting decisions of the Full Court on the subject and are obliged to choose between them. Young v Bristol Aeroplane Co Ltd (1944) KB 718, 729. I have no doubt, for the reasons that have generally prevailed in other places since Devine v Solomijczuk was decided, that that case should now be regarded as having been overruled or, preferably perhaps, superseded in this respect. It is permissible to look at the Minister's second reading speech on the 1995 amendment to s20 of the Truth in Sentencing Act in order to identify the purpose of the amendment.

While the rule in Heydon's Case is traditionally expressed in terms of mischief or purpose, to the exclusion of intention, the difference between those concepts is often difficult to draw or apply in practice. Obviously the intention of Parliament will frequently be to remedy a mischief, so that an express statement of intention in a second reading speech may well, without more, be a reliable indicator of the mischief to be cured or, to put it another way, the purpose to be served. A second reading speech will not necessarily be irrelevant, then, simply because it is couched in terms of intention.

I turn to the Minister's speech in support of the amendment to s20. He gave a detailed explanation of the Bill. He expressly mentioned the case of a prisoner who is refused or refuses parole or is returned to prison as a result of breaching parole. He said - "The intention was that a once only calculation should be made and new subsections (2) and (3) make it clear that this is so.

Firstly new sub-section(2) makes it clear that a person who is returned to prison upon cancellation upon parole does not earn remissions on the balance of the unexpired parole period ...

Secondly, subsection (3) makes it clear that a person who is refused parole by the Parole Board or who refuses parole gets no further remissions ...

Prisoners who refuse parole for any reason will, as I have indicated, receive no further remissions. These prisoners would, before 1 August 1994, have been eligible for remissions until they were released on parole or served their sentence. The effect of new subsection (3) is that such prisoners will not be eligible for any remissions after the expiry of their non-parole period. This once again is in accord with the policy that there should be a once and for all calculation of remissions on 1 August 1994. It is the prisoner's decision to remain in prison which ends his or her entitlement to earn remissions. This is not a factor which the Government believes calls for reconsideration of the policy that there should be a once only calculation of

There is a clear indication here of the purpose that the 1995 amendment to s20 was intended to achieve and also, though primarily by implication, the perceived defect in the 1994 Act that the amendment was designed to remove. But really, it is enough for present purposes to find on this evidence, as we must, that Parliament passed the 1995 Bill with the case of the transitional prisoner, who for any reason refuses parole, specifically in mind. That disposes conclusively of the argument that Parliament cannot have intended to include the relatively few anomalous cases, such as the appellant's, in the broad sweep of the amended s20.

In my opinion, the appeal against sentence must also be dismissed.

JUDGE2 PRIOR J I agree that both appeals must be dismissed. Debelle J was plainly correct in refusing the habeas corpus application for the reasons he gave. I agree with his reasons and those given by Olsson J on the appeal. I agree with what Cox J has written with respect to the appeal against sentence. He has correctly inferred that when I sentenced the appellant, I considered that the appellant should and would complete his sentence in an appreciably shorter time than nine years. However, Parliament's power to change the law and the consequence of a particular sentence according to law cannot be disputed. It has unmistakably exercised that power. This Court cannot interfere.

I agree with Cox J that Devine v Solomijczuk (1983) 32 SASR 538 should now be regarded as superseded by later authority.

JUDGE3 OLSSON J What follows constitutes my composite reasons in relation to two separate proceedings, namely - (1) An appeal against an order of Debelle J, whereby he dismissed a summons for a writ of habeas corpus in respect of the appellant, who is, currently, a prisoner being held at Mobilong Prison; and

(2) An appeal against the original sentence imposed on the appellant.

I first deal with the appeal related to the habeas corpus matter.

In essence it is the assertion of the appellant that he has now served his time, given the credit to which, he says, he is entitled for remissions for good conduct. Accordingly, he contends that he is now unlawfully detained in prison.

The relevant circumstances are, to say the least, unusual.

On 16 June 1992 the appellant was sentenced, in respect of an admitted crime of manslaughter, to imprisonment for a term of nine years, to commence from 23 November 1989. The learned sentencing judge fixed a non-parole period of seven and a half years, to run from the same date.

It is beyond dispute that, under the legislation as it then stood -
- the learned sentencing judge was required, in determining a sentence, to take into consideration the fact that the appellant would be entitled to remissions for good behaviour, both in relation to the head sentence and the non parole period (Criminal Law (Sentencing) Act, s12); and that
- on the assumption that he would, in fact, qualify for the maximum remissions, the practical situation was that he would qualify for release:
- on or about 11 December 1994, if he accepted parole; or
- on or about 13 December 1995, if he did not.

He was so advised, in writing, by the Correctional Services Department as recently as 29 July 1994.

In the event, the appellant elected not to take parole when he became entitled to do so. In part his decision was based upon the formal advice to him that he would become entitled to unconditional release on 13 December

However, his expectations in that regard were dashed to the ground when, by memorandum from the Parole Board dated 11 October 1995, he was advised that, due to legislative changes, his release date would not be until 12 June

This prompted him to issue the summons to which I have referred, which was returnable before Debelle J. After reviewing the factual circumstances in light of the relevant history of legislative amendment of the Correctional Services Act ("the CSA"), Debelle J concluded that the calculation of release date made by the Parole Board was correct.

The Statutes Amendment (Truth in Sentencing) Act, 1994 ("the TSA") was assented to on 2 June 1994. It came into operation on 1 August 1994.

That Act repealed Part VII of the CSA, and thus swept away the then existing system of remissions of sentence for good conduct. However, it contained a transitional provision (section 20) expressed in these terms - "A sentence of imprisonment (including a suspended sentence) imposed before the commencement of this Act and a non-parole period imposed before the commencement of this Act are, on the commencement of this Act, reduced: (a) by the number of days of remission credited to the prisoner or youth; and (b) by the maximum number of days of remission that the prisoner or youth could have earned after the commencement of this Act had this Act not repealed Part VII of the Correctional Services Act 1982."

The net effect of this enactment, as Debelle J pointed out, was that, because his sentence had been imposed prior to 1 August 1994, the appellant's release dates did not change. Indeed, in one sense, he was better off, because he then had what was tantamount to an absolute entitlement to what would have been the maximum former remissions which he could possibly have earned under the repealed legislation, regardless of his then future conduct in prison.

So the situation stood until 24 April 1995, when the legislation was further amended by the Statutes Amendment (Correctional Services) Act ("the SACCA"). Section 4 of that statute amended section 20 of the TSA, so that it then read as under - "(1) Subject to subs(2), a sentence of imprisonment

(including a suspended sentence) imposed before the commencement of this Act and a non-parole period imposed before the commencement of this Act are, on the commencement of this Act, reduced: (a) by the number of days of remission credited to the prisoner or youth; and (b) by the maximum number of days of remission that the prisoner or youth could have earned after the commencement of this Act had this Act not repealed Part VII of the Correctional Services Act 1982.

(3) In subsection (1), the 'maximum number of days of remission', in relation to a sentence of imprisonment (including a suspended sentence) in respect of which a

non-parole period has been fixed, means the maximum number of days of remission that the prisoner or youth could have earned in respect of that non-parole period assuming that he or she was released in accordance with section 66(1) of the Correctional Services Act 1982 (as in force before the commencement of this Act), whether or not he or she is in fact released at the end of the non-parole period (as reduced under this section)."

It has always been the respondent's contention that the effect of the SACCA, was that section 20, as amended, was deemed to have come into operation as of 1 August 1994. The SACCA thus had retrospective effect. I will shortly come back to the precise verbiage employed which is said to have achieved that effect.

It will, at once, be apparent that, on the respondent's contentions, the effect of the new subsection (3) was that, although the appellant retained his entitlement to all pre-existing remission provisions which would have been applicable to his non parole period, he lost any entitlement to remissions in respect of the period in which he remained in prison, instead of being on parole. On that argument, a statutory right which he possessed had, retrospectively, been taken away. This was so, notwithstanding that the head sentence had, by virtue of the then mandatory statutory provision, originally been arrived at, bearing in mind that he was to be entitled to remissions.

Debelle J could see no escape from such an end result, even on the strictest reasonable construction of section 20, as amended. For that reason he was constrained to uphold the conclusion of the Parole Board, notwithstanding what he, very properly, perceived to be a quite anomalous situation in which the appellant had been placed, vis a vis other relevant categories of prisoner.

Counsel for the appellant sought to challenge the conclusion arrived at by Debelle J on a number of bases. His contentions proceeded from the trite bases that - - a penal statute affecting the liberty of the subject must be strictly construed (Watson v Marshall [1971] HCA 33; (1971) 124 CLR 621); and - a criminal statute should not be construed so as to operate retrospectively unless that intention is manifested

by clear and unambiguous language (Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261).

The first proposition espoused by Mr Tilmouth, QC, on behalf of the appellant, was based on the provisions of section 14d of the Acts Interpretation Act, which stipulates that - "Where an Act, or part of an Act, comes into operation on a particular day, it will be taken to have come in operation as from 12 o'clock midnight of the preceding day."

In seeking to apply section 14d to the case at bar, he drew attention to the precise verbiage of section 2 of the SACCA. That section is expressed as under - "Commencement

2.(1) This Act (except for section 4) will come into operation on assent. (2) Section 4 of this Act will be taken to have come into operation on 1 August 1994."

As I understand his submission it was to the following effect - (1) As of 31 July 1995, the appellant had a vested right, under the then existing legislation, to a release date of 13 December 1995.

(2) Section 14d of the Acts Interpretation Act applied to the SACCA as an overall statute, save for subsection (2) of section 2, ie by virtue of subsection (1) the amending Act operated, as such, from midnight of 31 July 1994.

(3) Because subsection (2) merely stipulates that section 4 "will be taken to have come into operation on 1 August 1994", section 14d of the Acts Interpretation Act has no application to it. Thus the precise times at which the TSA and section 4 of the SACCA took effect were not co-incident (cf Gribbles Pathology (Vic) Pty Ltd v His Honour Judge Allan and Another (1992) 57 SASR 218).

(4) The TSA therefore took effect before section 4 of the SACCA, with the result that the former was effective in reducing the appellant's sentence to a period expiring on 13 December 1995, because, under section 20 of the TSA, the plaintiff's head sentence and non-parole periods were instantly reduced 'on the commencement' of the TSA. As of 1 August 1994 there was nothing upon which section 20, as amended by section 4 of the SACCA, could operate.

An alternative argument advanced was to the effect that the TSA reduced the appellant's head sentence on 1 August 1994 to one of six years, so that, by 20 April 1995, when the SACCA received assent, "the subject matter of section 20(1) was already spent, and had no further application to the case".

These are ingenious arguments, but they cannot withstand serious scrutiny.

I do not find it necessary to rule upon the question of whether section 14d of the Acts Interpretation Act is directly applicable to subsection (2) of section 2 of the SACCA.

It seems to me that what Mr Tilmouth's argument ignores is that, regardless of the provisions of section 14d, the question, in the final analysis, really comes back to a consideration of the clear intention of the legislature in doing what it did.

If his submission is accepted the practical consequence is that the amendment effected by section 4 of the SACCA would be left with little or no work to do at all. Section 22 of the Acts Interpretation Act requires this court to adopt that construction which would promote the obvious purpose or object of the relevant statute.

There can, in my opinion, be no doubt that, in enacting section 4 of the SACCA, Parliament was expressly setting out to amend section 20 of the TSA, to read in the form prescribed by section 4 of the SACCA as if the TSA had originally been enacted in that amended form. It would be perverse of this court to hold otherwise.

That being so the above contentions must be rejected.

Next, it was submitted by Mr Tilmouth QC that the rights vested in the appellant as of 31 July 1994 were preserved by virtue of the operation of section 16(1)(c) of the Acts Interpretation Act, which provides that - "16 (1) Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not - ... (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry;"

He asserted that no such contrary intention appears from the SACCA; and that, "had Parliament intended to retrieve (future) remissions reduced under the truth in Sentencing Act, it could and should have said so expressly".

The obvious riposte to such a suggestion is that already given to his earlier contentions. With respect, the provisions of the SACCA render it abundantly apparent that the legislature was expressly and unequivocally setting out to ensure that section 20 of the TSA did not operate according to its original tenor. That was the whole purpose of enacting section 4 of the SACCA.

It follows that this submission must also be rejected.

Finally, Mr Tilmouth QC, argued, perhaps somewhat faintly, that, on some legal basis for which he was unable to produce any authority, section 4 of the SACCA ought to be struck down, because the effect of it was to increase a sentence lawfully imposed on a prisoner by a court in a manner which usurps or infringes the judicial power of the judiciary. The obvious response to that line of argument is that the State Parliament, as a plenary legislature, possesses such a power, if it chooses to exercise it; and this court has no jurisdiction to prevent it from so doing. As to this, the authorities Liyanage v The Queen (1965) AC 259, Polyukhovich v The Queen [1991] HCA 32; (1991) 172 CLR 501 and Gilbertson v The State of South Australia (1976) 25 SASR 66, referred to by Mr Tilmouth QC, do not establish any contrary proposition.

It follows that Debelle J has not been shown to fall into any error. His conclusion was plainly correct. I would therefore dismiss this appeal.

Having said that I would desire to associate myself with the sentiments expressed by Debelle J in his reasons. The situation of the plaintiff is patently anomalous and he is entitled to consider that he has been accorded less than fair treatment. It is a truly remarkable situation that a legitimate expectation has been taken from him against the background that his sentence was originally structured on the very existence of such a situation and he was specifically informed of a release date upon the basis of which he elected not to take parole. Had he taken parole he would not now be in his present predicament. On any view the net practical result must be seen as unfair because, in effect, he was (albeit unwittingly) misled at the time of making his election. In truth, the practical end result is that he has received a sentence which is excessive, because it takes into account and reflects a benefit which has now been removed from him. One would have thought that basic concepts of justice demand some alleviation of his situation in the manner suggested by Debelle J. The fact that other persons may, potentially, be in a similar situation does not, in any sense, remove the injustice which exists. Indeed, many other persons referred to (at least in generic group terms) are not, in fact, in precisely the same situation, for reasons discussed during the debate as to the appeal against sentence - to which I now come.

I have had the benefit of reading (in draft) the reasons written by Cox J in that regard. All that need be said is that I agree that such appeal must be dismissed, substantially upon the basis expressed by him - however much the practical consequences of that conclusion offends one's innate sense of justice.

Statutes Amendment (Truth in Sentencing) Act 1994

Statutes Amendment (Truth in [Sentencing) Act](/cgi-bin/viewdoc/au/legis/nt/consol_act/sa121/) Amendment Act 1995

Statutes Amendment (Correctional Services) Act 1995

Correctional Services Act 1982

Truth in Sentencing Act 1994

Statutes Amendment (Truth in [Sentencing) Act](/cgi-bin/viewdoc/au/legis/nt/consol_act/sa121/) Amendment Act 1995

Correctional Services Act 1982

Truth in Sentencing Act 1994

Statutes Amendment (Truth in Sentencing) Act 1994

Statutes Amendment (Correctional Services) Act 1995

EDWARD DOUGLAS OWEN v THE STATE OF SA R v EDWARD DOUGLAS OWEN No. SCGRG 96/179, SCCRM 96/155 Judgment No. 5574 Number of pages - 14 Criminal law - statutes

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Judgment (82 paragraphs)

EDWARD DOUGLAS OWEN v THE STATE OF SA R v EDWARD DOUGLAS OWEN No. SCGRG 96/179, SCCRM 96/155 Judgment No. 5574 Number of pages - 14 Criminal law - statutes (1996) 66 SASR 251 [1996] SASC 5574 (24 April 1996)

Legislation Cited (10)

Cases Cited (18)