• Supreme Court Rules r98.05(3);
• Statutes Amendment (Truth in Sentencing) Act 1994 s20;
• Correctional Services Act s67;
• Prisoners (Interstate Transfer) Act s28(6), referred to.

Counsel: MS J BRADSEN - Solicitors: CROWN SOLICITOR'S OFFICE

By application dated 4 November 1997, the defendant seeks the following order:-

"That the plaintiff's claim for judicial review as indicated in the plaintiff's summons of 11 September 1997 be struck out pursuant to Rule 98.05(3)."

SCR 98.05(3) enables a dependant to apply to strike out a Summons for judicial review "where on the evidence then before the Court there is no reasonable prospect that the Court would make any order in the nature of a judicial review.

On a plea of guilty to two counts of armed robbery the plaintiff was convicted and sentenced to a period of imprisonment in the District Court of South Australia on 13 November 1996. The plaintiff had originally been imprisoned in Western Australia for offences committed there but he was transferred, at his own request, to South Australia for the purposes of having the South Australian offences dealt with. The sentencing remarks of the District Court Judge indicate that he was provided with and accepted a calculation of the duration of the head sentence in respect of the Western Australian offences as being eight years three months and 19 days commencing on 30 October 1993. It is common ground that there had been no parole period set in respect of the Western Australian head sentence.

In sentencing the plaintiff the District Court Judge applied the totality principle referred to by the High Court in Mill v R (1988) 66 CLR 59. He made it clear that he applied the principle not only in relation to the head sentence but also to the non-parole period which he proceeded to fix. In fixing the non-parole period he made it clear that he was taking into account both the Western Australian and the South Australian offences.

In applying the totality principle his Honour added a sentence of one year eight months and 11 days to the Western Australian total so that a total head sentence of 10 years was arrived at. His Honour then fixed a non-parole period of six years commencing on 30 October 1993. That achieves a completion of the non-parole period in October 1999.

The plaintiff, by his Summons for judicial review, seeks a declaration that he "is a prisoner eligible to be released from prison on parole on the 29th day of October 1997". In his affidavit sworn on 8 September 1997, he said that the defendant through its instrumentality the Department for Correctional Services, informed him that he was not eligible to be released until 29 October 1999. At paragraph 6 of his affidavit he says:-

"6. It is my argument and I claim that His Honour Judge Robertson sought to place me in the position of a South Australian person sentenced to Ten (10) Years imprisonment with a non-parole period of Six (6) Years effective from the date of my being taken into custody namely the 30th day of October 1993. In particular I say that His Honour sought to place me in the position of a South Australian person sentenced on 30th Day October 1993 to imprisonment with an eligibility for release on parole at the expiration of Six (6) Years therefrom. Any argument to the contrary ignores the truth of my situation namely that I had embarked upon a course of conduct of carrying out (within a relatively brief space of time during 1993) a series of armed robberies that I was detected for those offences and held in custody for them since late October 1993 that I pleaded guilty to all relevant charges and that I was being sentenced for the totality of them.

7. I further claim The Statutes Amendment (Truth In Sentencing) Act 1994 and the Statutes Amendment Correctional services [sic] Act) 1995. Would apply to entitle a prisoner sentenced in October 1993 to remission of sentence equal to all remissions which could have been earned upon the non-parole period prior to the application of the Act and in my case that would have meant that remissions of Two (2) Years would have been applicable to the Six (6) Years non-parole explains the difference in positions between me and the said Department as to what rightly is the date on which I am eligible for release on parole."

There is an immediate answer to the plaintiff's application for judicial review. By amendment introduced by the Statutes Amendment (Truth in Sentencing) Act 1994, section 67 of the Correctional Services Act is as follows:-

"67.(1) Where a prisoner is ... liable to serve a total period of imprisonment of five years or more and a non-parole period has been fixed in respect of the sentence or sentences -

(b) the Chief Executive Officer, or any employee of the Department authorised by the Chief Executive Officer,

may apply in the prescribed manner to the Board for the prisoner's release on parole.

(3) An application cannot be made under sub-section (1) more than six months before the expiration of the non-parole period fixed in respect of the prisoner's sentence."

It is clear from the above section that the plaintiff may apply to the Parole Board for release on parole. If he is correct in his assertion that he became eligible for parole in October 1997 rather than October 1999, he could have applied to the Parole Board for release on parole during the six month period prior to 29 October 1997 or thereafter. If the Parole Board agrees with his contention, the Board will no doubt consider his application. If the Board disagrees with his contention and forms the view that the expiry date of the non-parole period is 30 October 1999, the Board will no doubt inform the plaintiff accordingly. If there is any substance to the plaintiff's point, it would then be open to the plaintiff to challenge the decision of the Parole Board not to entertain his application. In those circumstances, even if it is assumed that the Correctional Services Department holds the view that the plaintiff is not eligible for release until October 1999, that view does not constitute a decision or stance taken by the Department otherwise subject to judicial review which may only be corrected by way of judicial review. It is clear that it was and remains open to the plaintiff to make an application under Section 67 of the Correctional Services Act. For that reason alone I am of the view that "there is no reasonable prospect that the Court would make any order in the nature of the judicial review" as sought by the plaintiff or at all.

The defendant relied upon an additional ground in support of the application to have the Summons struck out. It was argued that the plaintiff was wrong in asserting, as he did in paragraph 7 of his affidavit, that the Truth In Sentencing Amendment would entitle the plaintiff to remission of sentence equal to all remissions which could have been earned prior to the application of the Act. I was referred to Section 20 of the Statutes Amendment (Truth in Sentencing) Act 1994 which is as follows:

"20. A sentence of imprisonment (including a suspended sentence) imposed before the commencement of this Act and a non-parole period imposed before the commencement of this Act are, on the commencement of this Act, reduced --

(a) by the number of days of remission credited to the prisoner or youth; and

(b) by the maximum number of days of remission that the prisoner or youth could have earned after the commencement of this Act had this Act not repealed Part 7 of the Correctional Services Act 1982."

The District Court Judge in his sentencing remarks (at page 5 et seq) said:-

"... For the purpose of your sentencing in South Australia the Crown has tendered a letter from the Department of Correctional Services dated 9 October 1996 which contained the following information:

'Upon arrival in South Australia Mr Taylor's sentences were subject to an adjustment for Truth in Sentencing which resulted in sentences being reduced as follows:

Two years, 11 months and 11 days for the breach of parole commencing 30 October 1993;

Five years, four months and eight days for armed robbery, two attempted armed robberies in company and seven stealing a motor vehicle to be served cumulatively open [sic] breach of the parole.

Thus, Mr Taylor's total head sentence is eight years, three months and 19 days commencing on 30 October 1993 and his expected release date is 18 September 2002.' "

Ms Bradsen, for the defendant, submitted that those reductions were inaccurate but in favour of the plaintiff and no point was now taken that a more generous remission was allowed than was warranted. Be that as it may, there is nothing before the Court to suggest that there has been a failure to make proper remissions in respect of the period of imprisonment. The plaintiff contended that remissions amounting to a period of two years should apply to the non-parole period because the non-parole period commenced on 30 October 1993. Such a construction misconstrues the meaning of Section 20 of the Truth in Sentencing Amendment. The first paragraph refers to "a non-parole period imposed before the commencement of this Act". The non-parole period was imposed by the District Court Judge after the commencement of the Act. It was imposed in light of the sentencing legislation then in force. In my view, it is plainly untenable to submit that Section 20 of the Truth in Sentencing Amendment had the effect of applying remissions to a non-parole period fixed after the commencement of the amending provisions in respect of that part of the sentence served prior to the commencement of the amending provisions.

The plaintiff relied upon Section 28 of the Prisoners (Interstate Transfer) Act (section 28(6)) which relates to service of sentence and remissions. Given the remissions that the District Court Judge allowed in calculating, on the totality principle, a head sentence of 10 years, the evidence suggests that the appropriate remissions have been applied. There was certainly nothing before the Court which is remotely capable of being viewed as evidence to the contrary.

For the above reasons I have formed the view that there is no reasonable prospect that the Court would make any order in the nature of a judicial review as contended for by the plaintiff.

The Summons will be struck out. In the event that the defendant seeks costs of the Summons against the plaintiff, the defendant should forward to my secretary and to the plaintiff a letter setting out the basis upon which costs are sought within 7 days of receipt of these reasons and the plaintiff will have a further 14 days within which to forward to my secretary his written reasons in opposition if he proposes to contest the defendant's application for costs.