//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1989] HCA 33
appellant. Application for extension of time in which to seek special leave to appeal granted in Hoare's matter. Applications for special leave to appeal granted in both matters. Appeals allowed. Orders of...
The High Court held that South Australian judges must not lengthen prison sentences or non-parole periods simply because prisoners can earn remission of up to 15 days per month for good behaviour. The law requiring courts to 'have regard to' possible remissions does not mean sentences should be increased by up to 50 per cent to cancel out that possible discount. Such an approach would make sentences harsher than the crime deserves and would undermine the whole point of rewarding good conduct in prison. The Court emphasised that sentences must stay proportionate to the offence and that the remissions system is meant to shorten actual time served, not be neutralised in advance by longer sentences. The earlier Court of Criminal Appeal decisions that had required dramatic increases were wrong, so the sentences were sent back to be reconsidered on correct principles.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,723 words · generated 24/04/2026
No linked legislation citations have been extracted yet.
Andrew John Easton was convicted after trial of four counts of armed robbery. The trial judge imposed concurrent sentences of five years, seven and a half years, 12 years and 15 years respectively, producing an effective head sentence of 15 years, and fixed a non-parole period of 11.5 years. Two of the offences had been committed before the commencement of s 302 of the Criminal Law Consolidation Act 1935 (SA) on 8 December 1986; the other two were committed afterwards. The Crown appealed against the asserted inadequacy of the sentences. The Court of Criminal Appeal (King CJ, White and O'Loughlin JJ) allowed the appeal, substituted sentences of eight years on counts one and two (concurrent), 12 years on count three (cumulative) and 12 years on count four (concurrent on count three), producing an effective head sentence of 20 years, and fixed a non-parole period of 15 years.
Aleksander Constantine Terry Hoare was convicted of a single count of armed robbery committed after the commencement of s 302. The trial judge sentenced him to 12 years imprisonment cumulative upon an existing sentence that had more than two years left to run and fixed a non-parole period of 10 years. Hoare appealed against sentence. By majority (Cox and Perry JJ, White J dissenting) the Court of Criminal Appeal dismissed the appeal.
Both matters reached the High Court on applications for special leave. The common ground of appeal was that the Court of Criminal Appeal had misconstrued s 302. That section, inserted by the Statutes Amendment (Parole) Act 1986 (SA), provided that a court, in fixing the term of a sentence of imprisonment or in fixing or extending a non-parole period, “shall have regard to the fact (where applicable) that the prisoner may be credited, pursuant to Part VII of the Correctional Services Act 1982 (SA), with a maximum of 15 days of remission for each month served in prison”. The Court of Criminal Appeal had, in Reg v Dube and Knowles (1987) 46 SASR 118, interpreted the section as requiring a “significant” or “quite dramatic” increase in sentence levels—potentially as much as 50 per cent—for offences committed after 8 December 1986. That construction had been applied both to Easton’s post-commencement offences and to Hoare’s offence.
The High Court (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) granted special leave, allowed the appeals, set aside the orders of the Court of Criminal Appeal, and remitted both matters for redetermination in accordance with the High Court’s judgment. The applicants were ordered to remain in custody serving the original sentences imposed by the trial judges pending further orders. An application by Easton for special leave to appeal against conviction was refused.
The High Court began from three interlocking propositions grounded in long-standing sentencing principle. First, a sentence of imprisonment must never exceed that which is appropriate or proportionate to the objective gravity of the crime (Veen v The Queen [No 2] (1988) 164 CLR 465 at 472, 485-486, 490-491, 496, applied at several points in the judgment). Second, the remissions system established by Pt VII of the Correctional Services Act 1982 (SA) is intended to operate as an incentive for good behaviour; any remissions earned reduce the time actually served and are a benefit conferred on the prisoner (Menz and Royce v The Queen [1967] SASR 329 at 330-331, quoted with approval). Third, it has been “almost universal agreement” in sentencing law that the existence of a remissions system is not, of itself, a circumstance justifying an increase in the head sentence.
The Court then turned to the text of s 302. The section does no more than direct the court to “have regard to the fact (where applicable)” that remissions of up to 15 days per month may be credited. That direction cannot be read as authorising or requiring a judge to increase the sentence that would otherwise be proportionate so as to negate in advance the benefit that the prisoner might earn. To do so would turn the remissions legislation “on its head”, converting a provision intended to reduce time served into an instruction to lengthen the sentence imposed. It would also offend the principle that a prisoner has no right to remission; the grant depends on an administrative discretion exercised month by month after consideration of behaviour (s 79(2) of the Correctional Services Act). Any assumption that maximum remissions will be earned in “most cases” (the view expressed in Dube) involves unjustified speculation adverse to the prisoner and is inconsistent with ministerial statements during the second reading debate that, since 1983, “probably for the majority of prisoners, the full remission is not given”.
The Court examined the practical interaction between remissions, non-parole periods and head sentences. It accepted the continuing authority of Reg v Harris (1984) 36 SASR 302 that remissions credited before parole do not reduce the head sentence if the prisoner is released on parole. The result is that an artificially inflated head sentence produces a longer parole tail, subjecting the prisoner to parole supervision for a longer period than would otherwise be the case. That consequence reinforces the unfairness of the Court of Criminal Appeal’s construction.
The judgment carefully distinguished the position regarding non-parole periods. Because a non-parole period is necessarily shorter than the head sentence, the proportionality principle is not directly engaged in the same way. There are circumstances in which a judge must have regard to the likely practical effect of remissions when fixing a non-parole period so that the intended balance between custody and supervised liberty is not distorted (Flentjar v Wright (1986) 42 SASR 246 discussed at length). But even here s 302 does not authorise a judge to set a non-parole period that counteracts the benefit of remissions; it merely ensures that the judge is not precluded by earlier dicta in Reg v Brennan (1984) 36 SASR 78 from considering the practical operation of the system.
The ministerial second reading speeches were referred to (without objection) to identify the mischief to which s 302 was directed. The speeches emphasised the declaratory character of the provision and the need to make clear that judges could have regard to remissions when fixing non-parole periods. There was no suggestion that the Parliament intended a sudden, dramatic overnight increase in all sentence levels across South Australia.
In short, the Court of Criminal Appeal’s construction in Dube and its application in the present matters was held to be inconsistent with both the text of s 302 and with fundamental, entrenched principles of sentencing law. The appeals therefore had to be allowed and the matters remitted.
Before Hoare, the law in South Australia had been unsettled. Reg v Brennan had said that a non-parole period should be fixed “without regard to any reductions which might result from remissions”. Flentjar v Wright had qualified that statement, recognising that regard to remissions was sometimes necessary to understand the practical effect of a non-parole order. The insertion of s 302 in December 1986 was widely understood at the time as a legislative response to that uncertainty. However, in Dube the Court of Criminal Appeal gave the section a far broader operation, treating it as a mandate to increase sentence levels significantly for post-1986 offences. Sentencing judges and the Court of Criminal Appeal had begun to act on the basis that a pre-1986 sentence level should be increased by approximately one-third or even 50 per cent for later offences.
After Hoare, that practice was authoritatively disapproved. Section 302 (and its successor s 12 of the Criminal Law (Sentencing) Act 1988) requires only that a court “have regard to” the existence of the remissions system. That regard cannot extend to inflating a proportionate sentence. The proportionality principle stated in Veen [No 2] remains the ceiling. Remissions continue to operate as a benefit that may reduce actual time served, subject to the administrative discretion and the rule in Harris that they do not reduce the head sentence on parole. Judges may, and in some cases must, consider the practical arithmetic when fixing a non-parole period so that the intended custodial proportion is not distorted by maximum remissions, but they must not set either the head sentence or the non-parole period on the footing that remissions must be neutralised.
The replacement of s 302 by s 12 in 1989, with its slightly stronger language (“must have regard to any remission of sentence to which the prisoner may become entitled”), was expressly stated by the High Court to be governed by the same reasoning. The law after Hoare is therefore that remissions are relevant but not a reason to impose a harsher sentence than the crime objectively warrants.
The joint judgment contains several passages that have become canonical in Australian sentencing law. One central statement appears early:
“It would represent a departure from that basic principle if a judge, instead of imposing a sentence within the limits of what represented appropriate or proportionate punishment for the crime, were to ‘impose a longer sentence merely because the offender may possibly earn remissions for good conduct’.”
In plain English: you cannot give someone extra years in prison just in case they behave well and get some time off. The sentence must fit the crime, full stop.
Later the Court addresses the construction of s 302 directly:
“the statutory directive to a court to ‘have regard to’ the possible operation of the remissions system in fixing the term of a sentence of imprisonment or in fixing or extending a non-parole period should not be construed as requiring a court to disregard and defeat the policy of that remissions system. Nor should it be construed as evincing a legislative intent to overthrow the entrenched sentencing principle that the sentence pronounced should not exceed what is appropriate or proportionate to the gravity of the offence.”
Plain-English translation: when Parliament said judges must “have regard to” remissions, it did not mean “add extra time to cancel them out”. The section does not override the rule that punishment must match the crime, and it does not authorise judges to frustrate the very purpose of the remission legislation.
The Court also approved the earlier statement from Menz and Royce:
“It is apparent that the policy [of the legislation establishing the remissions system] would be defeated if the one-third remission were in effect to be added on by the Court to the proper sentence for the crime. That policy demands that normal sentences should be reduced by one-third, not that the normal sentence should be one only to be reached after deduction of the one-third.”
In contemporary language: the remission is a discount earned after sentence, not a reason to inflate the starting point. Adding the discount back in before you even start is the opposite of what the law intends.
On the non-parole context the Court observed that regard to remissions is sometimes essential “when considering the question of what will be the practical effect of a given non-parole order against a given head sentence”. This acknowledges the arithmetic reality that maximum remissions of one-third will alter the actual time spent in custody versus time on parole, but it does not licence judges to set longer periods to counteract that arithmetic.
Hoare is triggered whenever a sentencing court in a jurisdiction with a statutory direction to “have regard to” remissions is invited to increase a head sentence or non-parole period on the footing that remissions will or may be earned. The precedent applies with particular force in South Australia under s 12 of the Criminal Law (Sentencing) Act 1988, but its underlying principles are of national application.
Typical triggering patterns include:
The precedent does not prevent a judge from having regard to the practical effect of remissions when calibrating a non-parole period to achieve a desired custodial proportion, nor does it prevent ordinary consideration of time spent in pre-sentence custody. It is directed specifically at the impermissible use of remissions as a reason to exceed the proportionate sentence.
Hoare has been treated as authoritative on the limits of statutory “have regard to” provisions in sentencing. In South Australia it was promptly applied by the Court of Criminal Appeal to quash sentences that had been inflated under the Dube approach. Nationally, the decision has been cited for the enduring vitality of the proportionality principle even in the face of “truth in sentencing” reforms that abolished or restricted remissions.
Subsequent High Court authority has reinforced rather than undermined Hoare. In Elias v The Queen (2013) 248 CLR 483 the Court reiterated that statutory provisions directing regard to particular matters do not authorise departure from fundamental sentencing principles. State courts routinely cite Hoare when rejecting Crown arguments that sentences must be increased to reflect the abolition of remissions or the introduction of parole schemes. The decision is also linked to the line of authority that prohibits “loading” sentences to achieve a particular effective custodial period after taking account of administrative schemes.
There has been no subsequent decision overruling or substantially qualifying Hoare. Later courts have, however, distinguished it in jurisdictions where legislation expressly requires courts to set a “non-parole period” or “minimum term” on the explicit footing that the prisoner will serve that period without remission. In such schemes the legislative premise is different and Hoare’s insistence that remissions must be allowed to operate as a benefit has less traction. Even there, the underlying proportionality ceiling remains.
Several questions were left open or only partially answered. First, the precise methodology by which a judge is to “have regard to” the remissions system when fixing a non-parole period remains somewhat opaque. The Court approved the approach in Flentjar v Wright of considering practical effects but gave no exhaustive checklist. Sentencing judges must therefore continue to navigate the arithmetic of maximum remissions without falling into the error of counteracting them.
Second, the interaction between Hoare and modern “standard non-parole period” or “baseline sentencing” regimes enacted in several jurisdictions after 1989 has not been fully explored at High Court level. Where legislation prescribes a standard non-parole period as a percentage of the head sentence, the extent to which remissions or notional remissions may still be considered is unclear.
Third, the judgment assumes the continuing correctness of Reg v Harris. That assumption was not contested, but a future court might be asked to reconsider whether remissions should be treated as reducing the head sentence even after parole. Such a reconsideration could have significant flow-on effects for breach-of-parole calculations.
Fourth, the Court noted that s 12 of the Criminal Law (Sentencing) Act 1988 uses stronger language (“must have regard”) but expressed the view, without full argument, that the same construction applies. A future challenge squarely raising the difference in wording could require revisiting that obiter statement.
Finally, Hoare leaves open the precise content of the “exceptional circumstances” in which regard to likely remissions may be used to reduce rather than increase a head sentence. The hypothetical foreign prisoner example is helpful but does not exhaust the category. Appellate guidance on the boundaries of that exception remains sparse.
Practitioners should therefore treat Hoare as settling the core proposition that remissions cannot be used as a reason to exceed a proportionate sentence, while recognising that its application to new statutory schemes and its outer limits continue to generate litigation. The decision remains a bulwark against the creeping tendency to translate administrative discount schemes into longer judicially imposed sentences.
The applicant Andrew John Easton ("Easton") was convicted of four counts of armed robbery. He was sentenced by the trial judge to concurrent terms of imprisonment: five years on the first count; seven and a half years on the second count; twelve years on the third count; and fifteen years on the fourth count. His Honour fixed a non-parole period of eleven and a half years and ordered that the four sentences and the non-parole period run from 25 March 1987, that being the date on which Easton had been taken into custody. On appeal by the Crown against sentence, the Court of Criminal Appeal (King C.J., White and O'Loughlin JJ.) allowed the appeal, set aside the concurrent sentences imposed by the trial judge and substituted the following sentences: eight years on count one; eight years on count two (concurrent with the sentence imposed on count one); twelve years on count three (cumulative on the sentences imposed on counts one and two); and twelve years on count four (concurrent with the sentence imposed on count three). The Court of Criminal Appeal fixed a non-parole period of fifteen years and ordered that the sentences imposed on counts one and two and the non-parole period run from 25 March 1987. In the result, the Court of Criminal Appeal substituted, for the effective total sentence of fifteen years and the non-parole period of eleven and a half years imposed and fixed by the trial judge, an effective total sentence of twenty years and a non-parole period of fifteen years. The crimes covered by counts one and two, in respect of which sentences of eight years were imposed, were committed before the commencement of s. 302. Those covered by counts three and four, in respect of which sentences of twelve years were imposed, were committed after the commencement of the section.
The applicant Aleksander Constantine Terry Hoare ("Hoare") was convicted of a single count of armed robbery. He was sentenced by the learned trial judge to imprisonment for twelve years commencing at the expiration of a sentence of imprisonment which he was currently serving and which had more than two years to run. His Honour fixed a non-parole period of ten years. Hoare appealed, by leave, against sentence to the Court of Criminal Appeal. By majority (Cox and Perry JJ., White J. dissenting) his appeal against sentence was dismissed.
Section 302 was inserted in the Criminal Law Consolidation Act by the Statutes Amendment (Parole) Act 1986 S.A.. It was repealed by the Statutes Amendment and Repeal (Sentencing) Act 1988 S.A. as from 1 January 1989 when it was replaced by s. 12 of the Criminal Law (Sentencing) Act 1988 S.A.. The wording of the last-mentioned section differs from that of s. 302. However, the matter was argued before us on the basis that s. 302, which applied at the times of Hoare's crime and of Easton's last two crimes and at the times when each was sentenced at first instance and when the appeal of each was disposed of by the Court of Criminal Appeal, is the relevant provision for the purposes of the present applications. It provided:
A court, in fixing the term of a sentence of imprisonment or in fixing or extending a non-parole period in respect of a sentence, or sentences, of imprisonment, shall have regard to the fact (where applicable) that the prisoner may be credited, pursuant to Part VII of the Correctional Services Act, 1982, with a maximum of 15 days of remission for each month served in prison.
As s. 302 indicated, the remissions system contained in Pt VII of the Correctional Services Act 1982 S.A. allows the remission for good conduct of a sentence of imprisonment up to a maximum of fifteen days for each period of a month actually served in prison. When the Correctional Services Act came into operation in 1985, Pt VII (as amended by the Correctional Services Act Amendment Act 1984 S.A., s. 51) replaced a similar provision in Pt IVB of the Prisons Act 1936 S.A.. Not all prisoners are eligible for remission under Pt VII. Thus, the remissions system does not, for example, apply to a prisoner whose total sentence does not exceed three months, to a prisoner who has been declared to be an habitual criminal or to a person returned to prison after the commencement in December 1983 of the Prisons Act Amendment Act (No. 2) 1983 S.A. upon cancellation of parole for breach of parole conditions (s. 79(1)). The remissions system is obviously intended to work as an incentive system for the encouragement and reward of good behaviour on the part of eligible prisoners. At the end of each month, the Permanent Head of the Department of Correctional Services is required to consider the behaviour during that month of each prisoner eligible for remissions under Pt VII. The Permanent Head "may, if he is of the opinion that a prisoner has been of good behaviour, credit him with such number of days of remission, not exceeding 15, as he considers appropriate" (s. 79(2)). Where the Permanent Head makes a decision to credit, or not to credit, a prisoner with any days of remission, he shall notify the prisoner, in writing, of his decision and of the reasons for it (s. 79(4)). Where a non-parole period has been fixed in respect of a prisoner, the days remitted are, as a practical matter, first credited against that non-parole period since, under the current statutory provisions (Correctional Services Act, Pt VI, s. 66(1)), a prisoner is, subject to the fixing and acceptance of parole conditions, entitled to be released "not later than 30 days after the day when the period [he] has served in prison during the non-parole period and the total number of days of remission credited to him during that period together equal the non-parole period". Where no non-parole period has been fixed or the prisoner has declined parole by non-acceptance of the conditions, the days remitted will, as a practical matter, be credited against the term of the sentence being served since Pt VII of the Correctional Services Act provides that, when the total number of days of remission and the period served in prison equal the term, or terms, of imprisonment to which a prisoner has been sentenced, he shall be released (s. 80(1)) and that, "[u]pon a prisoner being released from prison pursuant to this Part [i.e. Pt VII], his sentence, or sentences, of imprisonment shall be deemed to have been wholly satisfied" (s. 81). Where, at the end of a month it appears that a prisoner would be entitled to be released before the end of the next month if credited with 15 days of remission in respect of that month, the Permanent Head "shall thereupon credit the prisoner with 15 days of remission" (s. 79(5)). Otherwise, a prisoner is credited with the "appropriate" number of days of remission only at the end of the relevant calendar month.
There is a somewhat anomalous element of dichotomy between the Correctional Services Act's provisions for the effective crediting of days remitted against a non-parole period, and that Act's provisions for the effective crediting of days remitted against the head sentence. Prima facie, one would expect that days of remission actually credited would be available to remit service of the head sentence regardless of whether they were also credited against the non-parole period. There is, however, no provision of the Act to the effect that, when a person is released on parole, the credit for days already remitted will operate to reduce the term of the head sentence or remain available to be applied against the head sentence if he becomes liable to serve the balance of his sentence by reason of being sentenced to imprisonment for an offence committed during the period of his release on parole (s. 75(1)). In Reg. v. Harris [1] , the South Australian Court of Criminal Appeal held that the effect of earlier provisions of the Prisons Act, which closely correspond in relevant respects with the present provisions of the Correctional Services Act which replaced them, was that remissions granted did not operate to reduce the head sentence in a case where a prisoner is released on parole (i.e. released pursuant to a provision comparable with Pt VI and not Pt VII). It has not been suggested by either side that the decision in Harris , the correctness of which has not been the subject of argument, is inapplicable to the relevant provisions of the Correctional Services Act (see Flentjar v. Wright [2] ). The effect of the decision in Harris is that a prisoner who is released on parole obtains no reduction at all in his head sentence by reason of days of remission credited before his release. Since remissions for good behaviour are only available to a person while he is a prisoner serving a sentence of imprisonment, the result is that, in the common case where a prisoner is released on parole and is not returned to prison during the period of parole, the duration of the head sentence will be unaffected by credited days of remission. If a person is returned to prison by reason of being sentenced to imprisonment for an offence committed while on parole, he will be liable to serve the unexpired "balance" of his head sentence "as at the day on which the offence was committed" (s. 75(1)). In such a case, the effect of Reg. v. Harris would seem to be that he will obtain no benefit from days of remission credited before his release on parole.
The practice of allowing remission for good behaviour of the service of part of a sentence of imprisonment has existed from the earliest times of European settlement in this country. Originally, remission developed out of the Royal prerogative of mercy or clemency, including the power of conditional pardon (cf. Kelleher v. Parole Board (N.S.W.) [3] ). The Governor's powers "to pardon all such offenders and to remit all such offences" was exercised in order to set free transported convicts after what was seen as an appropriate period of enforced labour (see Governor Phillip's Commission of 1787 and, as to the power "to remit or shorten" the time or term of transportation, see 30 Geo. III c. 47, and Governor Phillip's Letters Patent of 8 November 1790). Traditionally, the existence of a system of remission has, from the point of view of a prisoner, been beneficial in that such a system allows the sentence imposed as appropriate to the gravity of the crime to be remitted or cut short by reason of good behaviour while it is being served. It is well settled as a matter of principle that the existence of a remissions system such as that contained in Pt VII of the Correctional Services Act is not, of itself, a circumstance justifying an increase in the head sentence. Indeed, that is one rule about which there is almost universal agreement in the often contentious field of sentencing law (see the "established authorities" referred to in Reg. v. Paivinen [4] ; and, e.g., Halsbury's Laws of England, 4th ed., vol. 11, Criminal Law, Evidence and Procedure, par. 483; Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 48-49; Daunton-Fear, Sentencing in South Australia (1980), pp. 98-99; Emmins, A Practical Approach to Sentencing, (1985), p. 128; Fox and Freiberg, Sentencing: State and Federal Law in Victoria (1985), pp. 420-421; Walker, Sentencing: Theory, Law and Practice (1985), p. 198; Hall, Sentencing in New Zealand (1987), pp. 46-47). The reasons underlying that general rule are clear. First, in the case of a system of remissions such as that involved in the present case, a "prisoner has no right to remission, although if he behaves himself he may get as much as a third remission" (Reg. v. Maguire and Enos [5] ). That being so, there can be no guarantee that a particular prisoner will in fact obtain the maximum possible or any number of days of remission. Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v. The Queen [No. 2] [6] ). It would represent a departure from that basic principle if a judge, instead of imposing a sentence within the limits of what represented appropriate or proportionate punishment for the crime, were to "impose a longer sentence merely because the offender may possibly earn remissions for good conduct" (see Reg. v. Paivinen [7] ). Thirdly, to increase what would otherwise be the appropriate sentence in all the circumstances of the particular offence by the period which the sentencing judge thought would be or might be credited as days of remission would be to negate in advance the real benefit to the prisoner of remissions for good behaviour and thereby reverse the policy underlying the remissions system (see Menz and Royce v. The Queen [8] ). Indeed, it would be effectively to turn a legislative system of remissions such as that contained in Pt VII on its head by reading statutory provisions intended to benefit a prisoner by allowing the reduction of the sentence imposed as appropriate to his crime as if they contained an additional clause to the effect that all sentences should be increased by the maximum period of remissions which a prisoner might earn.
That is not to say that, in the absence of some statutory provision such as s. 302, a sentencing judge could take no account at all of the availability (or unavailability) of remissions in determining the appropriate sentence in all the circumstances of the particular case. There could, for example, be no legitimate objection to account being taken of the fact that remissions are available for good behaviour during service of a sentence but not for good behaviour during time in custody before sentence in determining what (if any) allowance should be made in the head sentence in respect of such time (see, e.g., Reg. v. Town [9] ; Reg. v. Creed [10] ). There may, indeed, be exceptional circumstances in which a sentencing judge may, consistently with both principle and the policy of the remissions system, be influenced by the likelihood of remissions to reduce a head sentence by reason of some special factor by a lesser period than would have been appropriate if there were no applicable remissions system. If, to take a hypothetical example, special humanitarian and personal considerations justified the reduction of what would otherwise have been an appropriate sentence of twelve months imprisonment to an extent that would enable a foreign prisoner to return to his home after six months, it would border on the absurd for the sentencing judge to be precluded from taking account of possible remissions for good behaviour so as to determine that the appropriate head sentence was nine (rather than six) months. In such a case, account is taken of the likely working of the remissions system not as a factor justifying an increase in the head sentence but for the purpose of assessing the appropriate extent of mitigation in the particular circumstances. In that regard, it should be stressed that the general rule referred to in the preceding paragraph is not that a judge must pay no regard whatsoever in the sentencing process to the availability of remissions for good behaviour while a prisoner is in custody. The general rule is that it is not permissible for a sentencing judge to treat the likelihood of remissions for good behaviour as itself constituting a ground for increasing what would otherwise be the appropriate head sentence.
Somewhat different considerations govern the extent to which a sentencing judge may be influenced by the operation of a remissions system in fixing a non-parole period. The length of a non-parole period is necessarily confined within the period of the head sentence and there is no question of transgressing the basic principle that a term of imprisonment cannot properly exceed that which is justified as appropriate or proportionate punishment for the objective offence. Both a remissions system and a parole system are ordinarily predicated upon the functioning of ordinary sentencing procedures and apply to excuse or release the prisoner from service of the full term of the sentence which is appropriate to his crime. There is no reason in principle why a sentencing judge should be precluded from taking account of the likely effect of remissions against the head sentence in fixing a non-parole period. As a practical matter, the fixing of an appropriate non-parole period may, in some circumstances, require that regard be paid to the likely effect of remissions upon the head sentence. Thus, during the period in which the South Australian remissions system operated to reduce the time required to be served under the head sentence but did not affect the non-parole period, the South Australian Court of Criminal Appeal recognized that it was necessary that a sentencing judge pay regard, when fixing a non-parole period, to the likely effect of remissions upon the head sentence to avoid rendering the parole system nugatory by fixing a non-parole period which extended beyond the earlier unconditional release of the prisoner (see Reg. v. Eckardt [11] ; and cf. Reg. v. Paivinen [12] ). In such a case, the existence of the remissions system could operate as a factor militating in favour of a shorter non-parole period than that which might otherwise be thought appropriate.
In Reg. v. Brennan [13] , which was decided after the South Australian remissions system was altered by the Prisons Act Amendment Act (No. 2) 1983 to allow the crediting of remissions to reduce a non-parole period, the Court of Criminal Appeal addressed the general question of the extent to which a sentencing judge could properly be influenced, in fixing a non-parole period, by the likely operation of the remissions system. In the course of his judgment, King C.J. (with whose judgment Walters and Mohr JJ. agreed) said [14] :
There is no longer any obstacle to the application of the principle laid down in Reg. v. Maguire and Enos and in Menz and Royce v. The Queen in determining the non-parole period as well as the head sentence. To approach the fixation of a non-parole period by first determining the period to be spent in prison and by then adding fifty per cent or some other proportion to counteract the reduction of the non-parole period by remissions is wrong in principle. It offends against the principle of sentencing laid down in the above cases; it assumes that the law as to good conduct remissions will remain the same for the duration of the sentence; it assumes that the prisoner will receive the maximum remissions for good conduct; it assumes that the conditions of parole fixed by the Board will be acceptable to the prisoner. None of those assumptions is justified. The proper approach under the new provisions, is for the sentencing judge to determine the proportion of the sentence which is to be spent in prison and that which is to be spent on parole. He should fix the non-parole period accordingly, without regard to any reductions which might result from remissions credited to the prisoner. 1. (1984) 36 S.A.S.R. 78. 2. (1984) 36 S.A.S.R., at p. 80.
The considerations to which King C.J. referred in the above passage plainly justify the conclusion which his Honour reached that, in the absence of statutory direction or mandate, it would be quite "wrong in principle" to "approach the fixation of a non-parole period by first determining the period to be spent in prison and by then adding fifty per cent or some other proportion to counteract the reduction of the non-parole period by remissions". Such an approach would be contrary to the legislative policy of allowing remissions against the non-parole period as a benefit and reward earned by good behaviour during custody. It would be quite unfair to the prisoner in that, as King C.J. pointed out, it makes unjustified assumptions to his detriment. On the other hand, King C.J.'s ultimate conclusion that the non-parole period should be fixed "without regard to" any remissions would, if it were construed as meaning that a sentencing judge can pay no regard at all to the working of the remissions system and the availability of possible remissions, go too far. As has been seen, there are circumstances in which it will be legitimate for a sentencing judge to be influenced by the availability of possible remissions even in determining the appropriate head sentence. Notwithstanding the legislative changes making remissions available to reduce the non-parole period, there are still circumstances in which it is plainly necessary for a trial judge to have regard to the availability of possible remissions in fixing the non-parole period. We turn now to explain why that is so.
In Reg. v. Brennan [15] , the Court of Criminal Appeal adopted King C.J.'s comments in Reg. v. Tio and Lee [16] as to the general principles by reference to which non-parole periods should be set. In those comments, his Honour had explained the procedure which he thought appropriate for a sentencing judge to follow in determining the head sentence and non-parole period in circumstances where possible remissions would apply to the non-parole period. His Honour said [17] :
the new legislation changes the system of remissions for good conduct. Before the new legislation, the good conduct remissions provided for by the Regulations made under the Prisons Act applied to the head sentence only and did not operate to reduce the non-parole period. The court, in fixing the non-parole period, was therefore driven to make an assumption as to the extent of the remissions which the prisoner would receive. This Court laid down that a sentencing judge should assume that the maximum available good conduct remissions would be received and should, in the ordinary case, fix a non-parole period which would allow proper scope, according to the evident intention of parliament, for the action of the Parole Board. The Court is now relieved of the necessity of engaging in this kind of guesswork. The effect of the new legislation is to apply remissions to the non-parole period also. The sentencing judge can fix the non-parole period upon the basis of the proportion of the sentence which is to be spent in prison and the proportion which is to be spent on parole, in the knowledge that any remissions will operate to reduce the non-parole period as well as the head sentence.
In order to frame a just and proper sentence, it is sufficient to know that whatever remissions lawfully apply from time to time will apply to the non-parole period no less than to the head sentence. The judge's task is to determine the head sentence and the non-parole period upon the basis of the proportion which the one should have to the other. The actual duration of each will depend upon the extent of the remissions for good behaviour which are granted to the prisoner.
As King C.J. pointed out in Reg. v. Harris [18] , the above comments did not take account of the absence of any provision allowing for the crediting of remissions against the head sentence in the case of a person who is released on parole. Equally important, and quite apart from the absence of such a provision, the fact that remissions are fully credited against the non-parole period means that a sentencing judge must still take account of the working of the remissions system if he is to determine the actual proportion between time spent in custody and time on parole since the crediting of the full period of remissions against the non-parole period will progressively distort the initial proportion between the non-parole period and the head sentence. If, for example, a sentencing judge wished to determine that the proportion of the sentence to be actually spent in custody be one half, he would, even if remissions were credited against both non-parole period and head sentence, frustrate that intention if he failed to take account of the possible effect of remissions and fixed a non-parole period of one half of the head sentence. Thus, the effect of maximum remissions in the context of a non-parole period of six years and a head sentence of twelve years would be (even if, contrary to Reg. v. Harris, remissions could be effectively credited against both non-parole period and head sentence) that approximately four years would be spent in custody and approximately six years on parole. In the light of Reg. v. Harris, the effect of maximum remissions in such a case would be that four years would be spent in custody and eight years on parole.
The case of Flentjar v. Wright [19] provided a good practical example of the need to qualify the statement in Reg. v. Brennan [20] that a sentencing judge "should fix the non-parole period without regard to any reductions which might result from remissions". That was a case in which the Court of Criminal Appeal reached the conclusion that a non-parole period allowing a significant reduction of the period actually served in custody could not be justified but that it was desirable that the assistance of the parole system be available to the prisoner at the time of his eventual release. Johnston J. [21] , in a judgment with which White and O'Loughlin JJ. agreed, paid detailed regard to the operation of the remissions system and the possible remissions for good behaviour which would be available to the prisoner to reduce the non-parole period, in determining the length of the appropriate non-parole period. His Honour adverted to the above-mentioned statement of King C.J. in Reg. v. Brennan. He construed that statement as precluding the increase of the head sentence and non-parole period to negate the benefit of remissions but not as precluding any regard at all being had in the sentencing process to possible remissions for good behaviour. As Johnston J. pointed out [22] :
But it has also been said on numerous occasions that in respect of some other matters, one must out of necessity refer to the impact of remissions; for example when considering the question of what will be the practical effect of a given non-parole order against a given head sentence. 1. (1986) 42 S.A.S.R. 246. 2. (1984) 36 S.A.S.R. 78, at p. 80. 3. (1986) 42 S.A.S.R., at pp. 262-263. 4. (1986) 42 S.A.S.R., at p. 263.
The Court of Appeal's judgment in Flentjar v. Wright was handed down on 30 September 1986. In the preceding month, the Statutes Amendment (Parole) Bill (inserting s. 302 in the Criminal Law Consolidation Act) had been introduced to the South Australian Parliament. It was passed by the House of Assembly on 24 September 1986 and by the Legislative Council on 5 November 1986. It was assented to on 20 November 1986 and was proclaimed to commence on 8 December 1986. The name "Statutes Amendment (Parole) Act" and the context provided by the Act's other provisions which are concerned with aspects of the parole system suggest that the section was primarily concerned to ensure that a sentencing judge was not precluded by what had been said in Reg. v. Brennan from having any regard to the operation of the remissions system in fixing the non-parole period. If that be so, Flentjar v. Wright did much to remove the need for the section between the time of its introduction and the time of its enactment.
In the course of argument of the present applications, counsel for the applicants referred the Court to the second reading speeches in the House of Assembly of the Minister of Correctional Services and of the Minister who introduced the Bill containing s. 302 (the Statutes Amendment (Parole) Bill) on his behalf. This was done without objection by the Solicitor-General who appeared for the Crown. Nor did the Solicitor-General seek to argue that the Court was not entitled to pay regard to those ministerial statements for the purpose of identifying "the mischief to which the Act was directed" (cf. Wacando v. The Commonwealth [23] ; Federal Commissioner of Taxation v. Whitfords Beach Pty. Ltd. [24] ; Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed. (1988), pars. 3.4-3.6) or "the purpose or object of the Act (whether or not expressly stated in the Act)" to which attention is directed by s. 22(1) of the Acts Interpretation Act 1915 S.A. (cf. Sola Optical Aust. Pty. Ltd. v. Mills [25] ; and note the absence of a South Australian statutory provision corresponding to s. 15AB(2)(f) of the Acts Interpretation Act 1901 Cth). In the absence of any such objection, we are prepared to assume for the purposes of the present case that the Court is entitled to refer to those ministerial statements for one or other of those limited purposes (i.e. for the identification of the relevant "mischief" or (under s. 22) "purpose"). Such reference provides support for the view that the mischief to which s. 302 was directed or the purpose which it was intended to serve was not a perceived need for a dramatic overnight increase in prison sentences in South Australia but the need to remove doubts about whether a court was precluded from paying any regard at all to the likely effect of remissions in fixing a non-parole period. In particular, the Minister of Correctional Services stressed the declaratory nature of s. 302. The section, he said, "spelt out to the court what it can already do so that it is perfectly clear." He added that "[w]hile the courts could always [have regard, in the sentencing process, to the possible operation of the remissions system] we felt it necessary to put it into the Act and spell out clearly to the courts that they need to take that into consideration" (House of Assembly Parliamentary Debates (Hansard), 24 September 1986 at p. 1175). As will be seen (below), the Minister of Correctional Services was also at pains to emphasise the fact that it would be quite wrong to assume that, under the current system, even a majority of persons would obtain maximum remissions.
The South Australian Court of Criminal Appeal first examined the effect of s. 302 in Reg. v. Dube and Knowles [26] . The offences in that case had been committed before the date of commencement of s. 302 (8 December 1986). The court held that the section should be construed as applying only to offences committed on or after that date and was therefore inapplicable to the offences in the cases before it. However, in the course of deciding that it should not accede to a submission by the Crown that there should be a substantial increase in the level of penalties for the crime of armed robbery by reason of the increased prevalence of that crime in South Australia, the court found it necessary to deal with the effect of the section in the cases to which it applied. It construed the section as requiring a "significant" or "quite dramatic" increase in the level of sentences for crimes committed on or after 8 December 1986. In the course of his judgment (in which Bollen and von Doussa JJ. concurred), King C.J. said [27] :
The extent of the adjustment must be a matter of judgment in each case. What the judge must have regard to is that a prisoner may be credited with one-third remissions. Clearly the judge is not required or entitled to consider whether the individual prisoner is likely to behave well in prison and thereby earn the remissions. The mandate is to have regard to the objective existence of the remission provisions and their potential bearing upon the time which the prisoner will spend in prison. It is not certain, of course, that any particular prisoner will receive any particular period of remission. Common sense and common experience in these Courts, however, combine to indicate that in most cases the maximum or very nearly the maximum period of remissions will be credited.
What I have said above is, I think, sufficient to indicate that the effect of the operation of the new section will be to increase the level of sentences significantly. As there is no certainty about the period of remission which any particular prisoner will earn, the judge is not obliged, in my opinion, to adjust a sentence which he would otherwise have imposed in any strictly mathematical fashion. Nevertheless the reality is that if it is desired that a prisoner spend six years in prison before parole, regard for the remission provisions is likely to lead to a non-parole period approaching nine years. The same considerations apply to a head sentence. It can be seen, therefore, that the effect of the new section on the level of sentencing will be quite dramatic and could in some cases result in as much as a fifty per cent increase in the sentence which would otherwise be awarded.
At the end of his judgment, the Chief Justice spelt out the effect of what had been said about s. 302 [28] : I think that it is desirable that the warning which is implicit in what I have said above should be made explicit. Crimes committed on or after 8 December 1986 will attract substantially heavier sentences than hitherto by reason of the removal of the legal fetters which previously existed. Sentences, especially for serious crimes, could in some instances increase by as much as fifty per cent. 1. (1987) 46 S.A.S.R. 118. 2. (1987) 46 S.A.S.R., at pp. 121-122. 3. (1987) 46 S.A.S.R., at p. 124.
In subsequent cases, the approach seems to have been adopted in South Australia by both sentencing judges and the Court of Criminal Appeal that the prima facie effect (i.e. subject to adjustments to meet the particular circumstances of the individual case) of s. 302 is to increase the general level of head sentences for serious crimes committed on or after 8 December 1986 by fifty per cent over the levels applicable to crimes committed before that date. Thus, in upholding the Crown's appeal in the case of Easton which is now before this Court, White J. (with whom King C.J. and O'Loughlin J. agreed) clearly accepted a submission of the Solicitor-General which his Honour identified as being
that a sentence of imprisonment of about 8 years was appropriate for a pre-December 1986 armed robbery by a person with a prior record of serious violent offending and 12 years for a similar offence (and offender) after that date. He [i.e. the Solicitor-General] acknowledged that there must be adjustments up and down. Here, an adjustment up was necessary because four hold-ups were involved while an adjustment down was necessary because a toy pistol was used .It is clear that a similar approach was adopted by the Court of Criminal Appeal in upholding the sentence of twelve years imprisonment imposed upon the applicant Hoare.
The judgment in Reg. v. Dube and Knowles does not really seek to explain why a direction to "have regard to" the operation of a remissions system should be construed as having the effect of requiring an increase of up to fifty per cent in head sentences for serious criminal offences in South Australia. As has been seen, the basis of the remissions system is that the sentence imposed by a sentencing judge should be reduced to the benefit of the prisoner by the period of any remissions earned by good behaviour while in custody. To increase the sentence of imprisonment in order effectively to negate the benefit of such remissions is to frustrate or defeat, rather than "have regard to", the operation of that remissions system. As Bray C.J., Travers and Mitchell JJ. pointed out in Menz and Royce v. The Queen [29] :
It is apparent that the policy [of the legislation establishing the remissions system] would be defeated if the one-third remission were in effect to be added on by the Court to the proper sentence for the crime. That policy demands that normal sentences should be reduced by one-third, not that the normal sentence should be one only to be reached after deduction of the one-third. 1. [1967] S.A.S.R., at pp. 330-331.
Nor does the judgment in Reg. v. Dube and Knowles [30] contain any reference to the basic principle of sentencing law that a sentence of imprisonment should never exceed what represents appropriate or proportionate punishment for the objective offence. There is nothing in s. 302 which can properly be seen as a legislative direction to a sentencing judge to disregard so fundamental a principle and, in effect, to impose a much harsher sentence than is appropriate or proportionate to the crime in order to negate any benefit to a prisoner which may result from some administrative officer exercising the discretionary power to remit actual service of part of the sentence imposed. To the contrary, the legislative direction that regard be paid to possible remissions indirectly assumes the continued existence of the appropriate or proportionate sentence upon which the operation of the remissions system is predicated.
Considerations of fairness also militate strongly against treating s. 302 as requiring a sentencing judge to increase the appropriate sentence by a period which will negate the effect of any remissions. Thus, it is a matter of conjecture whether a particular prisoner will, as a result of the exercise of an administrative discretion, be credited with all or even most of the possible days of remission (see, e.g., Menz and Royce v. The Queen [31] ; Reg. v. Brennan [32] ). In Reg. v. Dube and Knowles [33] , King C.J. stated that "in most cases the maximum or very nearly the maximum period of remissions will be credited". None the less, it would seem inevitable that a significant number of persons will not obtain the benefit of anything like the maximum number of days of remission. In that regard, the material before this Court records that the Minister of Correctional Services informed the House of Assembly in the course of the second reading debate on s. 302 (House of Assembly Parliamentary Debates (Hansard), 24 September 1986, p. 1175) that, since 1983 when the system was "changed" so "that the remissions had to be earned and given by the management of the institution", "probably for the majority of prisoners, the full remission is not given. An enormous amount of remission is not given and that is how it should be." Moreover, to increase a head sentence by fifty per cent in order to negate the benefit of possible remissions would produce a quite unfair and capricious situation in that the effect of the decision in Reg. v. Harris [34] is that the head sentence will not in fact be reduced by remissions in the ordinary case where a prisoner is released on parole. The result would be that a prisoner in such a case would not only be deprived in advance of the true benefit of any remissions which he might earn by good behaviour but would be positively disadvantaged by the existence of the remissions system in that a consequence of the increase in his head sentence would be an incidental and undeserved (and presumably undesired) dramatic increase in the period during which he is subjected to the constraints upon liberty and the potential consequences of parole. If, for example, what would otherwise be a head sentence of ten years and a non-parole period of six years was increased (pursuant to the Court of Criminal Appeal's construction of s. 302) to fifteen years and nine years, the result would be that, if the prisoner obtained the maximum remissions and was released on parole after approximately six years, his head sentence would continue to run for the whole of the outstanding period of approximately nine years. In the result the prisoner's sentence does not approximate a sentence of ten years with a six year non-parole period without remissions; the prisoner will be subject to parole for an additional three years. What would otherwise have been a parole period of six years would be increased by fifty per cent.
In the light of what has been said above, the conclusion seems to us to be unavoidable that s. 302 should not be construed in the manner in which the South Australian Court of Criminal Appeal has construed it. The statutory directive to a court to "have regard to" the possible operation of the remissions system in fixing the term of a sentence of imprisonment or in fixing or extending a non-parole period should not be construed as requiring a court to disregard and defeat the policy of that remissions system. Nor should it be construed as evincing a legislative intent to overthrow the entrenched sentencing principle that the sentence pronounced should not exceed what is appropriate or proportionate to the gravity of the offence. All that the section required was that a sentencing judge "have regard", in determining sentence or in fixing a non-parole period, "to the fact (where applicable)" that a prisoner may earn remissions up to the prescribed maximum by good behaviour while in custody. Of itself, that fact will not provide any basis for increasing what would otherwise be seen as the appropriate or proportionate head sentence. That fact may, in exceptional circumstances, tend to reduce the weight to be given to particular mitigating circumstances. It will, as Johnston J. pointed out in Flentjar v. Wright [35] , necessarily be relevant when considering the question of the practical effect of a given non-parole order against a given head sentence. Even in the case of the non-parole period, however, s. 302's direction that a court "have regard to" the possible operation of the remissions system cannot properly be construed as a directive to counteract or outflank the policy that remissions actually earned for good behaviour should reduce the period fixed as the appropriate non-parole period.
It follows that, in each case, special leave to appeal should be granted, the appeal should be allowed and the order or orders of the Court of Criminal Appeal should be set aside. In the case of Hoare, the time for applying for special leave to appeal should be extended. Since it is apparent from the Court of Criminal Appeal's judgment in Reg. v. Dube and Knowles that, were it not for their Honours' construction of s. 302 in that case, a general increase in the level of sentences for armed robbery may well have been thought appropriate, the matters should be remitted to the Court of Criminal Appeal so that that court can consider what orders should be made on the respective appeals against sentence, including Easton's appeal against the sentences imposed in respect of his two pre-s. 302 crimes. Pending the making of any such further orders, the applicants will remain in custody serving the sentences imposed by the sentencing judge.
There are two further matters which should be mentioned. The first is that Easton also sought special leave to appeal from the decision of the Court of Criminal Appeal dismissing an appeal against his conviction. At the conclusion of his counsel's argument the Court indicated the reasons why special leave, if granted, would be confined to an appeal against sentence alone. It is unnecessary to restate those reasons.
The other matter which should be mentioned is that, as has been said, s. 302 was replaced, as from 1 January 1989, by s. 12 of the Criminal Law (Sentencing) Act 1988. The wording of the present s. 12 ("must have regard to any remission of sentence to which the prisoner may become entitled") is stronger that that used in s. 302. Like s. 302, however, all that is required is that "regard" be had to the possible operation of the remissions system. While the effect of s. 12 was not argued in the present case, it would seem desirable that we indicate that the conclusions which we have expressed in relation to the effect of s. 302 would appear to be applicable with respect to s. 12.
Hoare
The Queen
High Court of Australia Mason C.J. Deane, Dawson, Toohey and McHugh JJ. Hoare v The Queen [1989] HCA 33
Application for extension of time in which to seek special leave to appeal granted in Hoare's matter. Applications for special leave to appeal granted in both matters. Appeals allowed. Orders of the Court of Criminal Appeal set aside. Matters remitted to the Court of Criminal Appeal of South Australia for determination in accordance with the judgment of this Court. Applicants to remain in custody serving the sentences imposed by the trial judges pending further orders by the Court of Criminal Appeal. Application for special leave to appeal against conviction refused in Easton's matter.