What happened
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.
Why the court decided this way
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 and after state of the law
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.
Key passages with plain-English translation
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.
What fact patterns trigger this precedent
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:
- Crown appeals alleging that a sentence is manifestly inadequate because it has not been uplifted to reflect a statutory remission scheme.
- Defence submissions that a proposed sentence has been inflated to neutralise possible remissions.
- Cases where the sentencing judge has expressly stated that the head sentence has been increased by one-third or 50 per cent because of the operation of a remission or “truth in sentencing” regime.
- Any sentencing exercise involving serious violent or sexual offences where historical comparisons are made between pre- and post-legislative change sentence levels.
- Matters involving cumulative sentences or parole breaches where the interaction between head sentence, non-parole period and the rule in Harris-type authorities is in issue.
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.
How later courts have treated it
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.
Still-open questions
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.