R v Watt

High Court of Australia|1986-08-08|Before: Gaudron JJ, Maxwell J

High Court of Australia Wilson, Brennan, Dawson, Toohey and Gaudron JJ. R v Watt [1988] HCA 58

ORDER Special leave to appeal granted in each matter. Appeals dismissed with costs.

These applications for special leave to appeal raise questions as to the operation of parole provisions of the Probation and Parole Act 1983 N.S.W. ("the Act").

I direct that the prisoner is not entitled to the remissions prescribed by reg 18 made under the Probation and Parole Act 1983. I make this order because it appears to me that it is desirable by reason of the nature of the offences.

His Honour's direction was given pursuant to a power conferred by s. 21A of the Act. That section reads:

(a) was convicted before, or is convicted on or after, the day on which this section commences; and

the court may, upon sentencing the person, order that the person shall not be entitled to any remissions, or to any remissions granted in such circumstances as the court may specify, in so far as those remissions would, but for the order, reduce the term of a non-parole period specified in relation to the sentence.

(2) A court shall not make an order under subsection (1) unless it appears to the court that the making of the order is desirable by reason of the nature of the offence or the antecedent character of the person convicted.

(3) Where a court makes an order under subsection (1), the court shall state the reasons for the order.

Before examining the operation of s. 21A and other relevant provisions of the Act, it is advisable to carry through the history of the matter. On 26 December 1986 the respondent escaped from custody. Shortly afterwards he was arrested and on 27 April 1987 he was dealt with in the District Court of New South Wales on a plea of guilty to a charge of escaping from lawful custody. Judge Nash sentenced the respondent to eighteen months penal servitude, to commence on the expiration of the sentence he was then serving. He added: "I consider that a reasonable non-parole period, bearing in mind the lengthy non-parole period to which you will be subject, is an additional six months." Judge Nash referred to the non-parole period fixed by Maxwell J., commenting that "the effective non-parole period still owing by you, with the additional six months to which I have referred, is approximately eight and a half years from the date of your recapture". He then fixed a non-parole period of eight and a half years, to date from 31 December 1986.

Both the Crown and the respondent appealed to the Court of Criminal Appeal. The respondent challenged the direction of Maxwell J. that he was not entitled to remissions, on the ground that it rendered his sentence manifestly excessive. The Crown appealed against the inadequacy of the sentence imposed by Judge Nash and against his direction that the non-parole period date from 31 December 1986, it being contended that a non-parole period cannot be dated to commence earlier than the custody of the prisoner in relation to the offence in connection with which the non-parole period is fixed. The Court of Criminal Appeal dismissed the Crown's appeal against sentence but upheld the challenge to the date from which the non-parole period was to commence. In that regard there is no complaint by the respondent in this Court. The Court of Criminal Appeal also upheld the respondent's appeal against the direction of Maxwell J. and set aside that direction. In the result, the sentences imposed on the respondent were unaffected save that a non-parole period of eight years and one month was fixed, to commence from 27 April 1987, and there was no exercise of the power conferred by s. 21A of the Act.

The Crown now seeks special leave to appeal in respect of both matters, although the only bone of contention is the setting aside by the Court of Criminal Appeal of the direction given under s. 21A of the Act by Maxwell J. The application relating to the revision of Judge Nash's order has been necessary only because of its connection with the sentence originally imposed by Maxwell J. If the Crown's application with respect to the direction of Maxwell J. succeeds, it may be necessary to vary further the order of Judge Nash.

The Court of Criminal Appeal upheld the appeal against Maxwell J.'s direction that there be no remissions because, in its view, there was no adequate basis for the direction given. However, the Court went further and, following two earlier decisions of the Court of Criminal Appeal, Reg. v. Rogers [1] and Reg. v. Evans [2] , confirmed the view that it is inappropriate for a judge, at the time of sentencing, to exercise the power conferred by s. 21A because an exercise of the power inevitably involves an interference with the future operation of the remissions system. The correctness or otherwise of that view involves a consideration of some legislative history and of the reasons given in the two cases just mentioned.

(1987) 8 N.S.W.L.R. 236. 2. (1987) 8 N.S.W.L.R. 540.

Division 2 of Pt III of the Act deals with non-parole periods. Within that division ss. 19 and 20 impose upon a court when sentencing a person, either initially or while that person is already serving another term of imprisonment, an obligation to specify a period before the expiration of which the person shall not be released on parole. Notwithstanding, s. 21 empowers the court to decline to specify a non-parole period if it appears to the court that, by reason of the nature of the offence or the antecedent character of the person convicted or for any other reason which the court considers sufficient, the specification of a non-parole period is undesirable. Section 21A then confers a further discretion upon the court, in terms already mentioned, regarding remissions that would otherwise be applicable.

Section 21A was introduced into the Act by the Probation and Parole (Remissions) Amendment Act 1986 N.S.W. which took effect from 25 May 1986. Section 460A was introduced into the Crimes Act 1900 N.S.W. by the Crimes (Remissions) Amendment Act 1986 N.S.W., thereby conferring a similar discretion on the court in respect of remissions otherwise applicable to a head sentence. Section 460A also commenced operation on 25 May 1986. By the Prisons (Further Amendment) Act 1986 N.S.W., which took effect from 1 July 1987, the power to refuse remissions otherwise applicable to a head sentence was transferred to s. 69 of the Prisons Act 1952 N.S.W.. The purpose of the 1986 legislation emerges clearly enough from the second reading speech of the Attorney-General when moving that the relevant bills be read a second time. The Attorney-General said:

The three bills which I now introduce fulfil the Government's promise to ensure that the courts have substantial control over the prison remission system in appropriate cases. The provisions contained in these bills will allow a sentencing judge to deny to any prisoner some, or all, of the reduction of the sentence which the prisoner might have hoped to receive through the operation of remissions They are seen as an assurance that people who are incarcerated for the protection of the community can be required by a court to serve the full term of that incarceration. On the other hand, those prisoners whom the courts consider may have the benefit of remissions, will be able to enjoy their reward for good behaviour and prison industry. (New South Wales Legislative Assembly Parliamentary Debates (Hansard) 23 April 1986, p. 2579)

In directing that the respondent serve the non-parole period without the benefit of any remissions, Maxwell J. said that he did so "because it appears to me that it is desirable by reason of the nature of the offences". This of course is the language of s. 21A(2). While his Honour did not elaborate, no doubt the nature of the offences spoke for itself. The respondent, who had ridden his motorcycle against a red light in Parramatta, was ordered by Constable Butcher, a member of the Highway Patrol of the New South Wales Police Force, to pull over to the side of the road. The respondent did so and Constable Butcher asked him for his driver's licence. While Constable Butcher was in the process of issuing infringement notices, he saw that the respondent's motorcycle had a numberplate but no registration label. When Constable Butcher returned to his motorcycle in order to check by radio the registration of the motorcycle, the respondent pointed a rifle at him. Constable Butcher attempted to evade the respondent but was shot and was shot again as he lay on the ground. He received serious injuries which fortunately were not fatal but which required his retirement from the police force.

The judgment of the Court of Criminal Appeal was delivered by Street C.J. with whom Hunt and Finlay JJ. agreed. In the course of his reasons, Street C.J. said:

Applying Evans [3] directly to the present case I am of the view that there was no adequate basis for the direction that his Honour gave withholding remissions. I propose that the appellant should succeed in that appeal by having that direction quashed. On one view it may be said that the Court of Criminal Appeal was doing no more than vacating Maxwell J.'s direction because his Honour had not expressed in adequate terms the reasons for the direction, in other words that he had done nothing more than echo the language of s. 21A(2). But when the judgment is read in its entirety, and in particular when regard is had to the decisions in Evans and Rogers [4] , the correctness of which the Court of Criminal Appeal would not allow to be re-argued, it is apparent that the Court was taking a more fundamental approach. In Rogers , where there had been a direction under s. 460A of the Crimes Act, Street C.J. delivered the judgment of the Court of Criminal Appeal with which Hunt and McInerney JJ. agreed. In the course of that judgment the Chief Justice referred to the operation of the remissions system which, he said, "is based on the premise that remissions are an incentive and reward for good conduct during the serving of a term of imprisonment" [5] . His Honour criticized legislation conferring on judges the power to withhold remissions, "thus diverting any public criticism either generally or in a particular case from the Government to the sentencing judge" [5] . For present purposes, the crux of the reasoning of the Chief Justice may be found in the following sentence [6] : "I go so far as to say that it seems to me impossible for this power to be responsibly exercised by a sentencing judge." This view unquestionably underlies the judgment of the Court of Criminal Appeal in the present case. 1. (1987) 8 N.S.W.L.R. 540. 2. (1987) 8 N.S.W.L.R. 236. 3. (1987) 8 N.S.W.L.R., at p. 239. 4. (1987) 8 N.S.W.L.R., at p. 239. 5. (1987) 8 N.S.W.L.R., at p. 240.

Rogers was followed in Evans where there was a direction under s. 21A of the Act. Hunt J., who had been a member of the Court in Rogers , delivered the judgment in Evans , a judgment with which McInerney J. (who had also been a member of the court in Rogers ) and Allen J. agreed. Hunt J. said [7] , referring to Rogers :

As a member of the Court in that case, I agreed with what the Chief Justice said. Further reflection since that time - and a rereading of some of the relevant literature - has confirmed in my mind even more strongly the wisdom of the views which the Chief Justice expressed and my belief that the legislative diversion of responsibility for the operation of the remissions system from the Government to the courts was wholly inappropriate. 1. (1987) 8 N.S.W.L.R., at p. 541.

It is true that s. 21A gives very little guidance to a sentencing judge. It is equally true that the section confers a power which is to be exercised within the limits of judicial discretion. To decline to exercise the power under any circumstances is, with the greatest respect, an abdication of responsibility for the exercise of the power conferred on the judiciary by the legislature. The second reading speech, to which reference has already been made, makes clear what can in any event be derived from the language of s. 21A in the context of the Act, namely, that there may be circumstances arising from the nature of the offence or the antecedent character of the person convicted that make it desirable to ensure that the period fixed as a non-parole period shall be served in its entirety, without the benefit of any or some of the remissions that would otherwise apply. The section does not require a court to predict the behaviour in prison of the convicted person. A direction under s. 21A is not made on the basis that the likely behaviour of the prisoner disqualifies him from the benefit of remissions. It is made on the basis, inter alia, that considerations touching the protection of the community render it desirable, in the view of the sentencing judge, that some or all of the remissions normally available should have no application. No doubt the power to give a direction will be exercised sparingly. But the limitations on the power imposed by s. 21A are to be found in sub-s. (2); it is not for a court to posit limitations not contained in the grant of power: see FAI General Insurance Co. Ltd. v. Southern Cross Exploration N.L. [8] .

The criteria for the exercise of the court's discretion to decline to specify a non-parole period (s. 20 of the Act) are precisely the same as the criteria governing the power under s. 21A to order that the prisoner not be entitled to remissions. But this correspondence in criteria does not supply a reason for denying the existence of the last-mentioned power. The legislative intention would seem to be plain. It was to enlarge the range of powers available to the court in cases where the nature of the offence or the antecedent character of the person convicted warranted the exercise of those enlarged powers. The consequences attending the exercise of either power are quite different. The refusal to fix a non-parole period has the effect that upon release the prisoner is not subject to supervision. On the other hand, the trial judge may consider the protection of the community is best served by restricting the application of the remissions system while ensuring that upon release there should be a period of parole.

In Power v. The Queen [9] this Court discussed the task of the sentencing judge in fixing a non-parole period. Barwick C.J., Menzies, Stephen and Mason JJ. concluded:

The judge, in fixing a non-parole period, must, we believe, have regard not to the time within which the paroling authority must consider the prisoner's case but to the time for which the prisoner must remain in confinement. The Court rejected the view, contained in certain decisions of the Court of Criminal Appeal of New South Wales, that a non-parole period should be fixed for no longer than is necessary for the paroling authority to form a proper opinion of the prisoner's prospects of rehabilitation. The decision in Power in no way dictated the decision of the Court of Criminal Appeal in the present case, nor did that Court suggest that it did. Equally, the direction of Maxwell J. was not inconsistent with that decision. The emphasis in Power on "the time for which the prisoner must remain in confinement" remains as relevant as it was before the introduction of s. 21A. In fixing a non-parole period, the sentencing judge must still look to the time for which the prisoner must remain in confinement and he will do so having made a decision whether, having regard to the nature of the offence or the antecedent character of the person convicted, that time should be served without the benefit of remissions. 1. (1974) 131 C.L.R. 623, at p. 627.

In concluding that the power in s. 21A cannot be exercised responsibly by a sentencing judge, the Court of Criminal Appeal fell into error on a matter of general importance to the administration of the criminal law. Special leave to appeal should therefore be granted. At the same time we have regard to the fact that the Crown brings this appeal primarily to test the correctness of the approach of the Court of Criminal Appeal to s. 21A of the Act. The Crown did not urge that we restore the direction of Maxwell J. In any event the respondent faces other charges in Queensland and this fact, together with the consequences of his escape from custody, make the operation of remissions during the non-parole period rather academic. In the circumstances it is appropriate to grant special leave to appeal in each of the matters but to dismiss the appeals. In the course of the hearing, counsel for the Crown agreed that it would not be inappropriate for the Crown to pay the costs of the applications.

In Reg. v. Paivinen [10] , this Court considered and explained the operation of the Probation and Parole Act 1983 N.S.W. ("the Act") and reg. 18 of the Probation and Parole Regulation 1984 (N.S.W.). It is unnecessary to repeat that exposition, but the Act has subsequently been amended by the insertion of s. 21A. The effect of that provision is now in question. Its effect can best be seen in the context of legislative developments which affect that part of a sentence of imprisonment which is to be served in actual detention. When power was conferred on a judge imposing a sentence of imprisonment to specify a non-parole period, this Court held in Power v. The Queen [11] , that: "the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention". The purpose of legislation allowing release on parole after expiry of the non-parole period was stated to be "to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence [12] ".

(1985) 158 C.L.R. 489, at pp. 491-494. 2. (1974) 131 C.L.R. 623, at p. 628. 3. (1974) 131 C.L.R., at p. 629.

In practice, sentencing judges usually specified non-parole periods so as to permit the release of the prisoner on parole before the date on which the prisoner would have become entitled to release by reason of remissions of the head sentence. There was little difficulty in fixing a non-parole period expressing the minimum period of detention which the sentencing judge considered that the crime called for, provided that period was shorter than the remission-reduced head sentence. But then the legislature provided for a reduction by remissions in the non-parole period as well as in the head sentence. The relevant provision is s. 25 of the Act:

In this Division and in any parole order, a reference to a non-parole period, in relation to a prisoner, is a reference to the non-parole period reduced by the period, if any, by which the non-parole period is required to be reduced in relation to the prisoner by or in accordance with the regulations. The effect of this provision in conjunction with reg. 18 was explained by Street C.J. in Reg. v. O'Brien [13] : The Probation and Parole Regulation 1984, provides in cl. 18 for an entitlement to a reduction of a non-parole period calculated on a basis proportionately equivalent to the prisoner's entitlement to remissions under the head sentence. Expressed in practical terms, if a prisoner's entitlement to remissions under the head sentence amounts to, say, two-fifths of the nominal term of the head sentence, then he will be entitled to have his non-parole period reduced by two-fifths of its specified length

It can be said that under the new legislation the non-parole period marches, in a proportionate sense, precisely in step with the head sentence.

Once the non-parole period became generally subject to reduction by remissions, prisoners were no longer required to serve the minimum period of detention which, in the opinion of the sentencing judge, the crime called for. The question arose whether, in specifying the non-parole period, the judge was entitled to take into account the possibility or likelihood that whatever non-parole period might be specified, it would be reduced pursuant to s. 25 and reg. 18. Differing views were expressed. They were recorded in the Paivinen judgment. In New South Wales, it was held that the sentencing judge was not entitled to take into account the possibility or likelihood of a reduction in the non-parole period pursuant to s. 25 and reg. 18: Reg. v. O'Brien [14] . That view seemed to accord with the line of cases cited in Paivinen [15] which held that a judge should not impose a longer sentence merely because the prisoner may earn remissions for good conduct.

[1984] 2 N.S.W.L.R., at pp. 454, 455. 2. (1985) 158 C.L.R., at pp. 494-495.

As the sentencing judge was powerless to prevent a reduction in the non-parole period by remissions and constrained to ignore the possibility or likelihood of the reduction, the specification of a non-parole period became a solemn charade. The sentencing judge, true to the direction given in Power, continued to specify a non-parole period which represented his view of the minimum period of detention which the crime called for, but the legislation denied practical effect to the order made. Prisoners were released on parole without serving in detention the minimum period which the sentence had imposed. Street C.J. described the situation in Reg. v. Rogers [16] :

The anxious deliberation given by sentencing judges to determining a sentence and non-parole period in the light of all the relevant considerations was, in effect, set at naught. The public, in turn, was misled upon the true nature of the sentence actually passed. That situation led Fox J. in the Federal Court to observe in Paivinen v. The Queen [17] : The credibility of the judicial system, and its efficacy in relation to criminal matters must suffer severely from the fact that both parts of a prison sentence, solemnly and publicly pronounced by a court to have one result, nevertheless have another. 1. (1987) 8 N.S.W.L.R. 236, at pp. 238-239. 2. (1985) 59 A.L.R. 368, at p. 377.

In this situation, the Act was amended by inserting s. 21A. It provides:

(a) was convicted before, or is convicted on or after, the day on which this section commences; and

(3) Where a court makes an order under subsection (1), the court shall state the reasons for the order.

This provision was one of a number of provisions introduced with the avowed intention "to ensure that the courts have substantial control over the prison remission system in appropriate cases": Attorney-General's second reading speech, New South Wales Legislative Assembly, Hansard , 23 April 1986, p. 2579. The sentencing judge was no longer to be powerless to prevent a reduction in what he regarded as the minimum period of detention which the prisoner should serve and no longer could he be constrained to disregard the practical effect of remissions on that period. However, the Supreme Court formed the view in Rogers [18] that it was impossible for the power conferred by a predecessor of s. 21A to be exercised responsibly by a sentencing judge. Street C.J. with the concurrence of Hunt and McInerney JJ. said [19] : The whole remission system is based on the premise that remissions are an incentive and reward for good conduct during the serving of a term of imprisonment. They are granted or withdrawn by prison authorities in the light of considerations essentially and properly relevant only to conduct and other circumstances arising during the course of the sentence being actually served. To attempt in advance to interfere with the operation of this system, by subjecting it to the control of the sentencing judge at the time of sentencing, is to place the sentencing judge in an entirely false position. The legislation subverts the very essence of the remission system and runs counter to proper and established penal philosophies both here and elsewhere.

The legislature's responsibility for the remission system was not effectively discharged by simply conferring on judges power to withhold remissions thus diverting any public criticism either generally or in a particular case from the Government to the sentencing judge.

Hunt J. reaffirmed this approach in Reg. v. Evans [20] , saying that the power conferred by s. 21A put the sentencing judge "in an inappropriate - indeed, impossible - role". His Honour added: This was because the penal philosophy upon which the remissions system is based requires that a prisoner's entitlement to the benefit of remissions is to depend upon his conduct and other circumstances arising during the course of the sentence whilst he is in custody. It is quite impossible for a sentencing judge to predict in advance how a prisoner will behave whilst in custody; criminologists have agreed that there is no adequate method of predicting dangerousness, and there is no relevant material which could be put before a sentencing judge which would enable him to succeed where the criminologists have failed. The legislation giving to courts the power to withhold remissions, it was said, subverted the very essence of the remission system and ran counter to proper and established penal philosophies both here and elsewhere. This view accounts for the order made in the present case. Is it correct? 1. (1987) 8 N.S.W.L.R., at p. 240. 2. (1987) 8 N.S.W.L.R., at p. 239. 3. (1987) 8 N.S.W.L.R., 540, at p. 541.

There is no room for a remission system if full effect is given to judicial sentences of imprisonment and fixed non-parole periods: either the remission system or the operation of the judicial sentences must yield. If the remission system were not only an essential but an immutable feature of prison administration to which the effect of judicial sentences must yield, the criticisms of s. 21A in Rogers and Evans would be entirely justified. Judges would indeed be placed in an impossible position: they would impose sentences to which full effect would not be given and the power to exclude remissions could never be exercised. But that is not what the legislature has done. In appropriate cases falling within s. 21A, the section subordinates the remission system to the effect of the judicially imposed sentence. The court, being vested with jurisdiction to prevent the undermining of its orders by remissions in appropriate cases, cannot refuse to exercise that jurisdiction. If that were to happen, the specification of a non-parole period would remain a charade, but it would be a charade of the court's own making. Now that the legislature has put into the court's hands the power to make effective orders specifying fixed minimum periods of detention, the court neither can nor should refuse to exercise the power in appropriate cases.

That is not to say that the exercise of the power conferred by s. 21A is free from difficulty. The reasons expressed in Rogers and Evans display the difficulties involved. As the system of earning remissions for good conduct is regarded - whether rightly or wrongly, I do not know - as a valuable incentive to good order in the prisons, the sentencing judge may need to foretell the prisoner's conduct to some extent and to form some view about the efficacy of the remission system in rehabilitating prisoners and securing good order in prisons. There is a further difficulty - perhaps more apparent than real - arising from the text of s. 21 (discretion of the court to decline to specify a non-parole period) and s. 21A (discretion of the court to exclude reduction by remissions). The grounds on which an order under s. 21A may be made correspond with the specific grounds on which the court may decline to specify a non-parole period under s. 21, though s. 21 includes a non-specific ground - "any other reason which the court considers sufficient". If the court does not decline to specify a non-parole period "by reason of the nature of the offence or the antecedent character of the person convicted", is there any reason why the court should, on one or other of those grounds, refuse the prisoner entitlement to remissions? The partial correspondence of the grounds prescribed by s. 21 and s. 21A raises that problem but also points to its solution. The armoury of the sentencing judge has been enlarged and, where one of the specific grounds prescribed by ss. 21 and 21A appears, he may tailor his sentence to the exigencies of the particular case by exercising his powers under either section or under both sections or by refraining from exercising those powers. The options open to the sentencing judge now range from the imposition of a head sentence without specifying a non-parole period and without entitlement to remissions to the imposition of a head sentence with a specified non-parole period, both periods being subject to the prisoner's entitlement to remissions. As that is the legal effect of the Act in its present form, sentencing judges will encounter difficulty in its administration because of the considerations to which Street C.J. and Hunt J. referred. But that difficulty does not relieve the court from the duty of exercising the power conferred by s. 21A. It will not be surprising if different judicial minds place differing importance on the desirability of leaving the remission system intact. The discretion is at large and there is no a priori reason to assume any bias in its exercise: in some cases the advantages of the remission system may prevail; in other cases, it will be appropriate to ensure that a fixed non-parole period shall be given the effect which the sentence purportedly intends. And the length of a non-parole period may depend on whether the period may or may not be reduced by remissions. Therefore, the principle stated in Power [21] is necessarily qualified by the operation of s. 21A. When one of the grounds prescribed in s. 21A appears and a judicial discretion to disallow remission entitlements is enlivened, a sentencing judge who proposes to specify a non-parole period must now consider whether the minimum punishment by way of confinement which the crime calls for should be expressed as a period which is fixed and irreducible, or as a period liable to reduction by remissions.

The Crown has made good its challenge to the refusal by the Supreme Court of New South Wales to exercise its powers under s. 21A. The effect of s. 21A is that, when a ground prescribed therein appears, the sentencing judge must consider whether the prisoner's entitlements to remissions should be disallowed. However, the Crown does not seek an order adverse to the respondent. The appropriate order is therefore to grant special leave to appeal but to dismiss the appeals. The Crown accepts that it is appropriate to order it to pay the costs.

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