Frost v R [2003] TASSC 39

Crimes Act 1914 (Cth), ss19AA and 19AG (since repealed).

Corrections Act 1997 (Tas), s86.

Oancea (1990) 51 A Crim R 141; Paunovic (1990) 51 A Crim R 174; Selimoski v Picknoll SC(WA) Full Court 1992, unreported BC9201074, referred to.

Respondent: Commonwealth Director of Public Prosecutions

Judgment Number: [2003] TASSC 39

1 For the reasons expounded by Evans J, I agree that no part of the law of the State of Tasmania governing the remission of prisoners' sentences applied to a period of the appellant's imprisonment equivalent to the pre-release period of imprisonment. Consequently, as the Crimes Act 1914 (Cth), s19AG had no application, no error in the exercise of the sentencing discretion has been made out and the appeal should be dismissed.

2 I would prefer to express no view about the provisions of the Crimes Act, ss19AA(1) and 19AG and the imposition of sentence in a case where it is ordered that the execution of part of the sentence be conditionally suspended. It was not in issue on the appeal and was not fully argued.

3 I have read in draft form the reasons for judgment of Evans J and agree with both his reasoning and conclusion and would dismiss the appeal.

4 Upon pleading guilty to twelve counts of obtaining credit by false pretences contrary to the Corporations Law, the appellant was sentenced to:

* 18 months' imprisonment on each of counts 1 to 6, each sentence to be served concurrently with each other and to commence on 15 May 2002.

* 18 months' imprisonment on each of counts 7 to 12, each sentence to be served concurrently with each other, but to commence at the expiration of the sentences imposed on counts 1 to 6.

A separate sentence was imposed on each count, as the Court has no power to impose a global sentence when dealing with a federal offender: Bibaoui (1996) 87 A Crim R 527. The learned sentencing judge also ordered that upon the appellant entering into a recognizance in the sum of $2,000 to be of good behaviour for a period of two years from the date of his release, he be released from prison after having served 18 months' imprisonment from 15 May 2002.

5 The appellant appeals against this sentence on the ground that the learned sentencing judge erred in that he failed to take into account the fact that the pre-release period of the sentence would not be subject to remission under the laws of the State of Tasmania which would have operated on an equivalent period under a State sentence and failed to adjust the pre-release period accordingly as he was required to do so by the provisions of the Crimes Act 1914 (Cth) ("the Act"), s19AG.

6 In the course of his comments on passing sentence, the learned sentencing judge did not indicate that by reason of the Act, s19AG, he had made an adjustment for remissions to the appellant's pre-release period. Accepting that the learned sentencing judge did not do so, the premise that underpins this appeal is that he was required to make such an adjustment pursuant to that section.

7 The Act, s19AA(1) provides:

"19AA - (1) A law of a State or Territory that provides for the remission or reduction of State or Territory sentences (other than such part of the law as relates to the remission or reduction of non-parole periods of imprisonment or of periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders) applies in the same way to the remission or reduction of a federal sentence in a prison of that State or Territory, being a sentence imposed after the commencement of this section."

8 The Act, s19AG, which applied when the sentence was imposed, but which has since been repealed, provided:

"19AG In calculating a non-parole period or pre-release period, in respect of a federal sentence, the court fixing that period:

(a) must take into account the fact that, under section 19AA, any non-parole period, or pre-release period specified in a recognizance release order made, in respect of the sentence will not be subject to remission or reduction other than a remission or reduction applying under subsection 19AA(4); and

9 Consistent with the Act, s19AA(1), the recipient of a federal sentence of imprisonment is to be accorded the benefit of any State or Territory remissions which relate to sentences, other than such part of the State or Territory law as relates to the remission or reduction of non-parole periods of imprisonment or of periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders. Where such a part of the State or Territory law does not apply because of the exclusion contained in parenthesis in s19AA(1), then s19AG required that the sentencing judge take this into account in calculating a non-parole period or pre-release period in respect of a federal sentence.

10 The operation of these provisions has been canvassed in a number of Western Australian decisions where for some time that State had laws which related to the remission or reduction of the non-parole period of a sentence of imprisonment, as well as the remission of the actual period of a sentence. The Offenders Community Corrections Regulations 1991 (WA), reg46, had the effect of entitling the recipient of a State sentence of imprisonment to a reduction in respect of good behaviour of 10 per cent from the non-parole period of a sentence. In consequence, when a federal sentence of imprisonment was imposed in Western Australia, in calculating the non-parole period or pre-release period, it was necessary to take into account the fact that by reason of the exclusion contained in s19AA(1), the regulations as to remissions from the non-parole period would not apply to the sentence. In contrast, in fixing the period of a federal sentence of imprisonment, no regard had to be paid to that part of the Western Australian law which provided for remissions on the period of the sentence, as that law applied automatically to federal sentences pursuant to s19AA(1), it not being covered by the exclusion contained in that provision: Oancea (1990) 51 A Crim R 141 at 152 - 153 and 159; Paunovic (1990) 51 A Crim R 174 at 176 - 177; Selimoski v Picknoll SC(WA) Full Court 1992, unreported BC9201074 at 15 - 17; and Aydlett SC(WA) Full Court 1993, unreported BC9301270 at 5.

11 The Offenders Community Corrections Regulations (WA), reg46, was amended to provide that it did not apply to a term of imprisonment imposed on or after 1 November 1994. In result, as was observed in Heryadi (1998) 98 A Crim R 578 by Ipp J at 587 (agreed with by Malcolm CJ and Kennedy J):

"It follows that, as from 1 November 1994, there was no law in force in this State which relate 'to the remission or reduction of non-parole periods of imprisonment or periods of imprisonment equivalent to pre-release orders of imprisonment in respect of recognizance release orders' within the meaning of these words in s19AA(1). It follows in turn that, at the time the applicant was sentenced, there was no law in force in this State which made any sentence of imprisonment 'subject to remission or reduction' within the meaning of those words in s19AG. In other words, s19AG no longer had any operation in this State."

12 The situation in Western Australia was then, so far as I am aware, as it has always been in Tasmania, that is, no part of the law of Tasmania relates to the remission or reduction of non-parole periods of imprisonment.

13 The Tasmanian law as to the remission or reduction of sentences is contained in:

* the Corrections Act 1997, s86, which provides:

"86 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)"; and

* the Corrections Regulations 1998, r23, which provides:

"23 - (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 a period of imprisonment 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."

14 Regulation 23(1) is of general application insofar as it applies to all Tasmanian sentences of imprisonment beside those imposed on prisoners convicted of escape or attempted escape or serving sentences of less than a total period of three months. That being so, subject to the exclusion contained in s19AA(1), that provision has the effect of providing the recipient of a federal sentence of imprisonment with the same remissions as are available pursuant to reg23(1) to the recipient of a State sentence. As no part of reg23(1), either specifically, or as an aspect of a provision of general application, relates to the remission or reduction of non-parole periods of imprisonment, it is plain that the first aspect of the exclusion contained in s19AA(1) does not apply; it is not so clear whether the second aspect of that exclusion catches this State's remissions law as embodied by reg23(1) and excludes it as being such part of this State's law as relates to periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders.

15 As the sentencing laws of this State do not include a provision similar to the Act, s20(1)(b), which provides for federal recognizance release orders, not surprisingly, no part of reg23(1) expressly relates to pre-release periods of imprisonment in respect of recognizance release orders. However, a court in this State does have the power to impose a term of imprisonment that is partly suspended. Subject to the qualifications already mentioned, reg23(1) applies to all State sentences of imprisonment including partly suspended sentence of imprisonment. It is contended that the operative period of a sentence of imprisonment that is partly suspended is equivalent to the pre-release period of imprisonment in respect of a recognizance release order. For this reason it is asserted that, when the appellant was sentenced, such part of this State's remissions law as related to suspended sentences was caught by the second aspect of the exclusion in s19AA(1) and in consequence s19AG had to be complied with.

16 A recognizance release order is a direction made pursuant to the Act, s20(1)(b), that a person sentenced to imprisonment be released, upon giving security by recognizance or otherwise to the satisfaction of the court that he will comply with certain conditions. The Act, s20(1), is as follows:

"20 (1) Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:

(a) by order, release the person, without passing sentence on him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:

(i) that he will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;

(ii) that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs by specified instalments as provided in the order;

(iii) that he will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order; and

(iv) that he will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed; or

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF (1)."

17 The "pre-release period", in relation to a recognizance release order made in respect of a federal sentence or sentences, means the period of imprisonment specified in that order as the period of imprisonment in respect of that sentence or those sentences after service of which the offender may be released on the giving of security in accordance with that order; the Act, s16(1).

18 There are obvious similarities between a partially suspended sentence of imprisonment and a direction that a person be released from prison upon giving security after serving a specified period of imprisonment. The similarities were adverted to in Weetra v Beshara (1987) 29 A Crim R 407 at 415 and Selimoski v Picknoll (supra) at 10. An order suspending part of a prisoner's sentence may have the same effect as a direction that upon a prisoner giving security as required, the prisoner shall be released after serving a specified period of imprisonment. This does not necessarily make the operative period of a partly suspended sentence equivalent to the pre-release period in respect of a recognizance release order. Before the latter governs the period of the prisoner's imprisonment, the prisoner must give security as required by the court. As such a requirement is not a mandatory ingredient of the release of a person whose sentence is partly suspended, it can reasonably be contended that the periods designated by these different means of sentencing are not equivalent. If this contention is rejected and it is found that part of this State's remissions law relates to the remission or reduction of periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders, the consequences of that finding are far from clear. It could result in a determination that s19AA(1) does not give any federal prisoner the benefit of reg23(1) because that regulation relates to a matter which is caught by the exclusion contained in s19AA(1). In result, a federal prisoner would be denied the automatic benefits provided by reg23(1), even if the prisoner's sentence of imprisonment did not involve a recognizance release order. An alternative determination could be that insofar as an aspect of the general application of reg23(1) to remissions on sentences of imprisonment relates to partly suspended sentences of imprisonment, that aspect of its application is caught by the exclusion contained in s19AA(1). A further alternative determination could be that as no part of reg23(1) separately or specifically relates to partly suspended sentences of imprisonment, no part of it is caught by the exclusion contained in s19AA(1). A conclusion to the latter effect would mean that the approach to the calculation of a federal sentence in this State would reflect the approach that has been taken in the authorities referred to in par8 above in that: reg23(1), this State's law of general application to remissions on the period of sentences of imprisonment, would be treated as applying to federal sentences pursuant to s19AA(1); and, if this State's law dealt separately or specifically with remissions for non-parole periods or remissions for pre-release periods of imprisonment in respect of recognizance release orders, that law would be caught by the exclusion contained in s19AA(1).

19 In Selimoski v Picknoll (supra) at 7, the members of the court noted that various judges in different Australian jurisdictions had from time to time remarked upon the complexity and lack of certainty of the provisions in question and agreed with those remarks. I also embrace them. It is trite law that where there is uncertainty about the meaning and operation of a statutory provision which affects the liberty of the subject, it is appropriate to adopt the meaning that enhances the liberty of the subject: Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 at 576; Smith v Corrective Services Commission of New South Wales [1980] HCA 49; (1980) 147 CLR 134; and Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 at 361. If the uncertainty as to whether part of the Tasmanian remissions law falls foul of the exclusion contained in s19AA(1) is resolved on the basis that the Tasmanian remissions law is excluded, federal prisoners in this State will be denied the automatic benefit to the same entitlement to remissions that State prisoners obtain. The purpose of the statutory scheme of which the Act, ss19AA(1) and 19AG formed a part was to avoid disparity between federal sentences and those imposed for offences against the laws of the State or Territory in which the federal sentences were to be served; Oancea (supra) at 149; Vanit v R [1997] HCA 51; (1997) 72 ALJR 1 at 4 - 5; and Heryadi (supra) at 586. That purpose is best achieved by construing the exclusion contained in s19AA(1) as not affecting any part of the current Tasmanian remissions law. If a contrary construction is adopted, at the time when the appellant was sentenced, s19AG would have been enlivened to alleviate the impact of the non-application of part of this State's sentencing law on a federal prisoner. However, the manner in which s19AG operated would not have avoided disparity between the treatment of the recipient of a federal sentence and the treatment of the recipient of a State sentence. The former would have received the benefit of a reduction in his sentence for good behaviour at the time when it was imposed, a reduction which was not lost in the absence of good behaviour during the period that he served the sentence; the latter's receipt of remissions was, however, dependent upon his good behaviour during the period of the sentence. This outcome in relation to federal prisoners was absurd from the point of view of the objective which underlines a regime which grants remissions for good behaviour. This divergence between the way in which State prisoners were dealt with and the way in which federal prisoners were dealt with when s19AG became involved did not achieve the purposes of the Act nearly as well as those objectives are achieved when a construction is adopted which does not involve part of the State's remissions law being affected by the exclusion contained in s19AA(1). The appropriateness of this construction is given increased force by the recent repeal of s19AG, a consequence of which is that if the exclusion contained in s19AA(1) is construed as affecting this State's current remissions law, not only will federal prisoners be denied the automatic benefit of the same, but, in the absence of s19AG, there will be no back door mechanism for recompensing them for the loss of that benefit. For these reasons, I conclude that this State's current remissions law applies to sentences of imprisonment imposed on federal prisoners and no part of that law is affected by the exclusion contained in s19AA(1). As this State's remissions law applied to the operative period of the sentence of imprisonment imposed on the appellant, there was no occasion for the learned sentencing judge to resort to s19AG when sentencing him. I would dismiss the appeal.