8.1 This Chapter considers four issues:
- sentences of imprisonment of six months or less;
- remissions;
- minimum and additional terms, under the Sentencing Act 1989 (NSW); and
- multiple sentences including aggregate as well as concurrent and cumulative sentences.
SENTENCES OF IMPRISONMENT OF SIX MONTHS OR LESS
8.2 The common law principle is that imprisonment is a sanction of last resort.1 Section 80AB of the Justices Act 1902 (NSW) gives some statutory recognition to this principle by preventing a magistrate from imposing an order involving full-time imprisonment “unless satisfied, having considered all possible alternatives, that no other course is appropriate”. The principle has also been recognised more generally by statute in other Australian jurisdictions.2
8.3 In DP 33 the Commission argued that greater substance could be given to the principle that imprisonment is the sanction of last resort if offenders who would normally be subject to short terms of imprisonment were diverted from custodial sentences. Accordingly we proposed that courts should provide reasons for any decision to impose a sentence of imprisonment of six months duration or less in the hope that the provision, in conjunction with the common law principle, might encourage courts to use imprisonment more appropriately.3
8.4 Several submissions either doubted the effectiveness of the principle that imprisonment is a punishment of last resort or questioned whether that effectiveness could ever be measured or known.4 Most, nevertheless, supported the Commission’s proposal, at least in principle.5 Some, while supporting the proposal, expressed concern that it may ultimately have little or no effect on the practical outcome of the process.6
8.5 The Department of Corrective Services supported the proposal principally because it might reduce the number of offenders sentenced to periods in custody,7 but drew attention to a number of problems which might arise in its application. One was a possible conflict with the aims of the home detention scheme, which is available only when the court has imposed a sentence of imprisonment of 18 months or less.8 Another was the possibility of a greater demand for pre-sentence reports to aid the courts in assessing the suitability of offenders for various sentencing options.9
8.6 Other submissions did not support the Commission’s proposal because:
- it might have the effect of increasing custodial sentences beyond six months, because a court might inflate sentences to avoid application of the principle;10
- the basis for the proposal was suspect and not capable of demonstration;11 and
- to impose such requirements would slow down the disposal of cases.12
The Commission is of the view that only the first of these objections has real substance. Appellate control will, however, ensure that sentences which are inflated simply to evade this requirement will be overturned.
8.7 The Commission has carefully considered the argument that the proposal which we put forward in DP 33 would be practically ineffective and secure only token compliance. In our view this argument is met by requiring that courts not only provide reasons for any decision to impose a sentence of six months or less but also expressly state why a non-custodial sentence is not appropriate.13 This approach will have the effect of directing the mind of the sentencing court not only to the suitability of imprisonment, but also to the suitability of other sentencing options.
REMISSIONS
8.8 Remissions operate to reduce a sentence of imprisonment so that an offender may be released unconditionally before the date which the sentencing court set for the termination of the sentence. Three types of remissions were available in New South Wales before their abolition in 1989:14
- earned - those which accrued as a result of the good behaviour (and were forfeited by the misconduct) of the prisoner while in custody;
- unearned - those that accrued automatically in accordance with a predetermined rate;
- windfall - those attributable to external factors, such as strike action by prison warders or a Royal visit.15
8.9 Remissions were administratively determined and the courts did not acknowledge them, holding consistently that they should not be taken into account when setting a non-parole period as part of a head sentence.16 The Sentencing Act 1989 (NSW) does not instruct courts to take into account the abolition of remissions in determining a sentence. In R v Maclay17 the Court of Criminal Appeal held that courts cannot take into account the likelihood that an offender would have benefited from remissions under the previous system.18 It has been argued that this approach has led to an increase in the New South Wales prison population since 1989.19
8.10 Criticisms of the current position concerning remissions were identified in the Discussion Paper. The main one was that the legislature had failed to take into account the effect of the abolition of remissions on the length of time actually spent in custody. However, proposals to require that the absence of remissions now be taken into account, as in some other Australian jurisdictions,20 were discounted by the Commission because of the artificiality involved in compensating for an abolition which occurred seven years ago, as well as the loss of public confidence which may result from an artificial reduction in the length of prison sentences.21
8.11 The Discussion Paper also considered the possible reintroduction of remissions. The Commission decided that, while there could be no reasons (beyond political and economic expediency) for reintroducing unearned remissions, there could be arguments in favour of the reintroduction of earned remissions. The principal reasons identified were that earned remissions provide prisoners with an incentive to good behaviour, education or good works and promote rehabilitation.22 While leaving the question of the reintroduction of remissions open, the Commission stated that the potential for abuse in a system of administratively determined remissions militated against this course.23
8.12 Submissions addressing the possible reintroduction of earned remissions were fairly evenly balanced. Some submissions opposed the reintroduction of earned remissions.24 Others supported their possible reintroduction essentially for the reasons already alluded to, that remissions act as an incentive to good behaviour and aid rehabilitation of prisoners.25 On the other hand some argued that there has been no significant increase in management difficulties arising from the loss of remissions.26 The Department of Corrective Services stated that remissions were not an effective management tool:
A far more effective management tool is the progressive classification of well behaved inmates from maximum security through medium security to minimum security. The participation of inmates in programs (eg work release) is also a sound management tool, as is a fair and swift system for dealing with prison offences.27
This view was strongly supported in consultations with officers from the Department of Corrective Services and Prison Governors.28
8.13 Practical objections to the reintroduction of a system of earned remissions were raised by the Department of Corrective Services and Prison Governors. Under the previous regime, both earned and unearned remissions were taken into account at the reception of a prisoner for the purposes of predicting the prisoner’s progression through the prison system and letting the prisoner know with some certainty his or her projected release date. In this way “earned” remissions were credited automatically and could only be lost by misbehaviour. In addition, the sheer size of the task of assessing each prisoner individually meant that, in practice, remissions were removed only in exceptional circumstances, with the vast majority of prisoners subject to no form of assessment as to their entitlement to remissions.29
8.14 Other submissions pointed to the inevitable inconsistencies in allocating remissions that would develop in the approaches of the Governors of different correctional centres.30 It was envisaged that, in some instances, part-time non-demanding forms of prison work might come to attract the same remissions as full-time demanding agricultural or industrial labour,31 no doubt arising partly from the difficulty involved in providing equal access to activities entitling a prisoner to earn remissions.
8.15 Two of the submissions in favour of remissions proposed that remissions should be in a “simple and easy to understand form” and should be based primarily on “education, training and rehabilitative programs”.32 A consultation with Prison Governors, who opposed the reintroduction of remissions, produced the tentative suggestion that, if remissions were to be reintroduced, an acceptable arrangement might be to offer, say, a remission of one day per month based on clearly ascertainable objective indicators such as successful completion of units within education or training schemes. They did not advocate a scheme whereby remissions would be granted for mere attendance at courses, or on difficult to assess criteria such as good behaviour. The awarding of these limited remissions could be handled in the same way as classification of prisoners, that is, by a management team meeting every six months which would report to the prison governor who would then make a recommendation as to appropriate action. It was also suggested that the remissions would be deducted only at the end of the assessment process and that it should be possible to lose already accumulated remissions by the same process.33
8.16 Despite the practical advantages that the ability to earn limited remissions might have, the Commission remains of the opinion that remissions should not be reintroduced in New South Wales. We have taken this position for two main reasons:
- in principle, remissions are in conflict with the principles of truth in sentencing; and
- there is a risk of corruption and abuse arising from the need to assess suitability for remissions.
In any case, the system of classification of prisoners, the availability of day and work release programs, and the assessment of suitability for parole for long-term prisoners34 already provide what appear to be sufficient incentives for good behaviour.
DETERMINING SENTENCES
8.17 The requirement that a sentence must generally comprise a minimum and additional term was introduced by s 5 of the Sentencing Act 1989 (NSW). It provides:
(1) When sentencing a person to imprisonment for an offence, a court is required:
(a) firstly, to set a minimum term of imprisonment that the person must serve for the offence; and
(b) secondly, to set an additional term during which the person may be released on parole.
(2) The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances.
(3) If a court sets an additional term that exceeds one-third of the minimum term, the court is required to state the reason for that decision.
(4) The minimum and additional terms set for an offence together comprise, for the purposes of any law, the term of the sentence of the court for the offence.
8.18 A prisoner sentenced to full-time imprisonment must, unless a fixed term is set, be sentenced to both a minimum term and an additional term. The minimum term represents the period the prisoner must spend in gaol while the additional term is the period during which the prisoner becomes eligible for release on parole.35
8.19 A fixed term may be set under s 6(2) for the following reasons:
8.20 Consistent with the above provisions, the Court of Criminal Appeal has held that where a sentencing judge imposes:
... concurrent sentences of unequal length or cumulative sentences, so that any additional terms upon the shorter or earlier sentences would be of no utility (because the prisoner will still be in custody), it is appropriate in such circumstances for the judge to set a fixed term for the length of what would otherwise have been the appropriate minimum term ... The judge should, however, when giving the reasons pursuant to s 6(3) for setting the fixed term, state expressly that the fixed term is intended to be the equivalent of such a minimum term. It would not be appropriate in such circumstances to impose a fixed term for what would otherwise have been the total sentence of the court.36
8.21 A fixed term must also be set where the court would otherwise fix a total sentence of six months or less.37 This means that there is no period during which such short-term prisoners can become eligible for parole.38
Special circumstances
8.22 Section 5(2) acts as a restraint on the judicial discretion to impose a sentence that, in all the circumstances of the case, relates appropriately to the offender and to the crime, by requiring the presence of “special circumstances” before courts can depart from the statutory ratio of minimum to additional terms. This is because the application of the ratio ignores the varied situations which need to be assessed when a sentence is determined,39 and requires the Court to identify “something about the case that warrants a longer than usual additional term by comparison with the minimum term”.40 This provision has been partly responsible for the increase in the prison population,41 despite the expressed desire of the Government of the day.
8.23 The Commission proposed the repeal of s 5(2) and (3) in DP 33.42 This will return to the courts an appropriate discretion, where a fixed sentence is not handed down, to fix the ratio between minimum and additional terms.43
8.24 Submissions were generally supportive of the repeal of s 5(2) and (3) and of giving courts the discretion to fix minimum and additional terms.44 The Commission remains of the opinion that, notwithstanding the finding of special circumstances in many cases before the courts,45 s 5(2) and (3) of the Sentencing Act 1989 (NSW) constitute an unnecessary and arbitrary restraint on the ability of a court to fix a sentence appropriate to the offence in question, and should be repealed.
Sentencing methodology
8.25 In DP 33 the Commission concluded that the repeal of s 5(2) would require a court initially to determine the sentence appropriate to the offence and the offender before specifying a minimum term, and that this would solve a significant methodological problem identified in respect of s 5(1) of the Sentencing Act 1989 (NSW).46 The problem is that, on the face of the legislation, it appears that the minimum term is to be set before the additional term. This approach to sentencing was termed the “bottom up” approach in the second reading speech.47 It differs from the approach taken under the regime before the Sentencing Act 1989 (NSW), which required the head sentence to be specified, followed by the specification of the component non-parole period (analogous to the minimum term).
8.26 Although the weight of authority favours the view that an appropriate total sentence should be set as a starting point,48 other authorities have taken different approaches, asserting variously that:
- a minimum term should be set before the additional term;49
- a provisional assessment should be made focusing on the minimum term;50 and
- the court should not be constrained by any particular approach.51
8.27 The Commission is of the view that the sentencing court should commence by stating the sentence before proceeding to fix the minimum term during which the prisoner is not eligible for release on parole. The sentence is the total which must, in the circumstances of the case, embody all the purposes of punishment (including denunciation) and also reflect proportionality, because the prisoner is liable to serve the whole of that sentence if, for any reason, parole is not granted.52 The mere statement of a minimum term and additional term cannot effectively convey all the purposes of punishment. It is only once a head sentence has been set that the court can determine the minimum term, that is, the period which the offender must, in justice, serve in gaol.53 Although the minimum term is determined by reference to the same factors which are relevant to the determination of the total sentence, the factors are not necessarily given the same weight.54 The High Court has made it clear that the minimum term is not the shortest time required before the offender’s prospects of rehabilitation can be properly assessed by a parole authority, but that it is rather:
... 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.55
8.28 The mere repeal of s 5(2) and (3) does not solve the methodological problem which we have outlined above.56 If s 5(1) is to remain and be effective, it should require a court to determine the head sentence and then fix the minimum term as a component of the sentence.57 The Commission therefore recommends that s 5(1) be amended accordingly.
MULTIPLE SENTENCES
Concurrent and cumulative sentences
8.29 The issue of concurrent and cumulative sentences arises where an offender has committed multiple offences or where the offender, while subject to a sentence for a previous offence, is convicted of a further offence. Concurrent sentences are sentences which commence together, the shorter sentences being subsumed into the longest sentence. A cumulative sentence is one which commences at the termination of a preceding sentence or sentences. In New South Wales there is a presumption in favour of cumulative sentences in cases where a prisoner, who is already serving a sentence, is convicted of an assault or other offence against the person.58
8.30 The Commission proposed that there be a general legislative presumption in favour of concurrent sentences59 on the grounds articulated by the Australian Law Reform Commission that offenders should not be subjected to a penalty that is “excessively severe” having regard to the total criminality of the incident(s) concerned.60 A presumption in favour of concurrent sentences applies in the Australian Capital Territory,61 the Northern Territory,62 Victoria,63 Queensland64 and Western Australia.65
8.31 The Commission reaffirms the proposal, which was supported in many submissions,66 that there be a legislative presumption in favour of concurrent sentences. It is noted that, in so recommending, the only reasons for imposing cumulative or partly cumulative sentences will either be because legislation requires it, or, more generally, because a maximum sentence is not available to make the effective total sentence for all the offences long enough to reflect the principle of totality or to denounce separate crimes.
8.32 The chief objection67 raised against a general legislative presumption in favour of concurrent sentences was that such a provision would lead to sentences being imposed for “criminality” rather than for the particular crime committed,68 which would breach the principle of proportionality, where one charge is singled out for the longest sentence and this sentence is inflated to reflect the total criminality involved in the commission of all the offences being considered.69 This criticism is not persuasive in light of the Court of Criminal Appeal’s approach to multiple sentences. In particular, it has held that, where there are two or more concurrent sentences, at least one may be longer than would otherwise be the case if it was determined by itself in order that the effective total sentence might reflect the totality of criminality involved in the offending behaviour.70 In such circumstances the principle of totality must be taken to qualify the principle of proportionality which relates only to the individual sentences.
Imposition of further sentences
Recommendation 44
When imposing a further sentence during the currency of an existing sentence (or sentences) the court should have the power to specify that the further sentence commence:
- at any time before the time the further sentence is imposed;
- at the time the further sentence is imposed; or
- at any time up to the end of the last expiring minimum term or fixed term of the previous sentence(s),
but no earlier than the commencement of the most recent continuous period of custody.
8.33 There are a number of objectives which a law relating to the imposition of further sentences should achieve. One is that such a law should not allow any period between the end of the last expiring minimum term or fixed term of any previous sentence(s) and the commencement of a further sentence during which a prisoner becomes eligible to apply for parole. Another is that the law should allow sufficient weight to be given, where appropriate, to the principle of totality.
8.34 Rules are set out for the operation of cumulative sentences in s 9 of the Sentencing Act 1989 (NSW). These rules are primarily concerned with avoiding gaps between the end of the last expiring minimum term and the commencement of the further sentence,71 and, in particular, attempt to address the problems arising from the fact that sentences consist of minimum and additional terms. The rules deal with two categories of cumulative sentences:
- Those imposed where the offender has not completed the minimum term or the longest of the minimum terms already imposed or currently being served. In such cases the cumulative term must presently be imposed at the end of the minimum term or the last expiring minimum term.72
- Those imposed where the offender has completed all the minimum terms imposed and is currently serving at least one additional term. In such cases the cumulative sentence is imposed at the time of sentencing or at an earlier date specified by the court.73
Deficiencies in the current scheme
8.35 There are a number of deficiencies which can be identified in the provisions relating to the imposition of cumulative sentences as they currently stand.
8.36 First, the section, on its face, fetters the discretion of the courts in not allowing a further sentence to commence before the end of the minimum term of a previous sentence. Section 9(1) requires that a cumulative sentence imposed during the currency of a minimum term must commence at the end of the last expiring minimum term. Accordingly it has been suggested that this section does not recognise partly cumulative sentences. However, in R v Elder74 the Court of Criminal Appeal held that the provision is concerned solely with the imposition of a wholly cumulative sentence and imposes no fetter upon the discretion of a court to impose a sentence that is partly concurrent and partly cumulative on an existing minimum term. The Commission proposed that, while partly cumulative sentences were already available at common law,75 they should be recognised in legislation.
8.37 Submissions were generally supportive of this proposal76 or did not oppose it.77 Recommendation 44 would amend s 9 so that a sentencing court may impose a further sentence to commence at any time up to its imposition, or up to the end of the last expiring minimum term or fixed term of the previous sentence(s), whichever is the later. This adequately allows for the imposition of partly cumulative sentences in all cases. There is, therefore, no need for a further express provision recognising partly cumulative sentences.
8.38 Secondly, s 9 does not accommodate fixed terms as possible components of multiple sentences.78 This failure to accommodate fixed terms means that, when the court imposes a further cumulative sentence on an offender who is serving part of an unexpired additional term concurrently with the remainder of a fixed term from another sentence, the further cumulative sentence must commence on the day on which it is imposed or earlier,79 thereby cancelling the effect of the previous fixed term sentence.
8.39 In R v Arnold80 both Chief Justice Gleeson and Justice Hunt referred to the desirability of legislative amendment of s 9(3). The Commission proposed that s 9(3) should be amended to allow cumulative sentences to be imposed during the currency of an existing term of imprisonment. Some submissions supported the proposal in general terms.81 The majority of these also agreed that s 9(3) should be amended to apply to fixed terms being served by prisoners.82
8.40 Thirdly, when an offender is serving the unexpired portion of an additional term, a further sentence which commences on the day it was imposed or earlier will have the effect of subsuming either the whole or part of the additional term of the previous sentence. Yet the court may not consider this a desirable outcome - as where an offender is sentenced for escaping lawful custody during the unexpired portion of an additional term. This was exemplified by the case of a magistrate who wished to impose a sentence of four months for an assault on a prisoner who was already serving an additional term with four months left to run.83
8.41 Fourthly, s 9(1) and (2) of the Sentencing Act 1989 (NSW) may have the effect of allowing a cumulative sentence to subsume so much of the additional terms of the other sentences as expire before the end of the last imposed sentence. The concern was that a total sentence might result which has a disproportionately large minimum term which must be served in custody and a disproportionately small additional term which may not prove adequate in ensuring that the offender receives sufficient support and supervision upon release into the community on parole.84 However there is nothing in the law relating to the imposition of multiple sentences to prevent a court from imposing a sentence which would ensure an additional term of appropriate length in the circumstances, especially given the proposed abolition of s 5(2) and (3)85 and the recognition of partly cumulative sentences.86
Proposals for reform
8.42 The deficiencies outlined above show that s 9 of the Sentencing Act 1989 (NSW) is unduly complex and does not satisfactorily achieve the objectives of ensuring there are no gaps between sentences during which a prisoner may become eligible to apply for release on parole and ensuring that, in appropriate cases, the principle of totality is adequately reflected in the effective sentence. Two possible avenues for reform have presented themselves: the first being the introduction of aggregate sentences; the second being the retention of the system of setting individual sentences for each offence, but with amendments to take into account the criticisms of the current scheme. The latter approach forms the basis for the Commission’s recommendation.
8.43 Aggregate sentences. An aggregate sentence is a single sentence imposed by a court in relation to a number of offences which would otherwise be subject to separate sentences. Aggregate sentences are generally not available in New South Wales except where the court takes into account outstanding charges in accordance with Part 6 of the Criminal Procedure Act 1986 (NSW).87 Section 12 of the Sentencing Act 1989 (NSW) provides:
8.44 In the Discussion Paper the Commission did not express a view on the issue of whether aggregate sentences should be introduced, but noted the arguments for and against their introduction.88
8.45 Some submissions supported the availability, in certain circumstances, of a power to impose a single sentence for all offences.89 The Senior Public Defender supported a return to the previous system of imposing a head sentence for each offence with an aggregate non-parole period to cover all offences, as part of his proposal to abolish s 5 of the Sentencing Act 1989 (NSW) in its entirety.90 The Department of Corrective Services also advocated the adoption of a similar scheme, stating that the advantage of this system is that it would avoid uncertainty in determining the date on which an offender becomes eligible to be considered for parole, as well as the date on which the period of eligibility for parole comes to an end.91
8.46 An argument against the introduction of aggregate sentences is the difficulty they create when any of the convictions is subsequently quashed on appeal. However, a problem will always arise in this regard, no matter how the sentence is imposed. In the case of concurrent sentences it is easier to amend the longest remaining sentence when one or more sentences are quashed since the longest sentence can be used to reflect the totality of the criminality involved in the offences. In this way the longest sentence is effectively the aggregate term.92 Other ways of dealing with the problem in the context of aggregate sentences could include giving the appeal court the power to impose a new non-parole period in the light of the remaining convictions,93 and remitting the matter to the trial judge for re-sentencing.
8.47 The Commission does not support the general availability of aggregate sentences in New South Wales because it is more consistent with the philosophy underlying s 12 of the Sentencing Act 1989 (NSW), which embodies the principle of truth in sentencing, that for each offence for which an offender is charged and convicted there is a separate and identifiable sentence (whether subject to a minimum term or not). The court then has the discretion, in light of all the circumstances of the case, to determine whether the sentence should be cumulative, concurrent or partly cumulative and partly concurrent.
8.48 Individual sentences. In retaining the system of setting individual sentences the Commission’s aim is to impose no fetters on the discretion of the court to fix a further sentence in a manner appropriate in all the circumstances, except in so far as gaps between minimum terms or minimum terms and fixed terms of imprisonment are avoided.
8.49 Some submissions drew attention to a problem which would arise if it were possible to impose a further sentence at any time during the currency of an existing term, that is, a prisoner might become eligible for parole during an additional term before the commencement of the further sentence.94 The Director of Public Prosecutions suggested that, where cumulative sentences are imposed during the currency of an additional term, an amendment would be necessary to allow the conversion of the appropriate portion of the balance of the additional term into a fixed term.95
8.50 The Department of Corrective Services saw a solution to the problem in the adoption of their proposed aggregate sentence period with a single non-parole period for all offences. Under such a scheme it would be possible for the courts to impose a non-parole period (minimum term) on a prisoner currently serving an additional term (as a result of parole not being granted), as part of a new aggregate sentence, consisting of the balance of the previous additional term and a fresh term. If the new aggregate is less than three years, the prisoner will be released at the end of the new non-parole period; if the new aggregate is more than three years, the prisoner will have to be considered for release by the Parole Board; and if the aggregate is six months or less, the prisoner will not be entitled to release on parole.96 The Department summarises the proposal as follows:
each time a court, regardless of the circumstances, wants to impose a sentence that is either partly or wholly cumulative with an existing “sentence period”, the court must set a new [non-parole period] in respect of the new aggregate term it has created.97
8.51 The Legal Aid Commission was opposed to any amendment to s 9(3) which would permit cumulative sentences to be imposed to commence during the balance of an additional term in the period between the date the cumulative sentence is imposed and the expiration of the additional term, pointing to the fact that a prisoner serving the balance of an additional term could be released at any time up to the end of the sentence. However, the Legal Aid Commission did not oppose any proposal to amend s 9 to allow a court to impose a cumulative sentence on an existing fixed term.98 In any event, the proposal was never one to permit a sentence to commence at a time later than its imposition where the prisoner was serving only an additional term in custody.
8.52 Having regard to all matters raised in consultations the Commission recommends, with respect to sentences determined under s 9, that it be possible to impose a sentence which commences:
- at any time before the time the further sentence is imposed;
- at the time the further sentence is imposed; or
- at any time up to the end of the last expiring minimum term or fixed term of the previous sentence(s).
This will ensure that there will be no periods of eligibility for parole between the end of the last expiring minimum term or fixed term and the commencement of the further cumulative sentence, and thereby meets the concerns raised with regard to fixed terms in R v Arnold.99 It also allows for the imposition of partly cumulative sentences. However, this recommendation may not allow adequate reflection of the principle of totality in individual cases involving multiple sentences, in as much as an effective total sentence cannot always be fixed when a further sentence is imposed during the remainder of sentence which has a very short minimum term. While the Department of Corrective Services’ proposal, that there be an aggregate sentence period with a single non-parole period for all offences, addresses the problem of totality, it must be rejected for the reason stated above.100 The only answer to this problem is that when a prisoner was previously subject to a long period of eligibility for parole, the minimum term or fixed term of the further sentence will have the effect of reducing or even cancelling the time during which the prisoner is eligible for release on parole. However, in most cases considerable latitude will be possible, subject to the presumption in favour of concurrent sentences, in combining the original and further sentences in a manner which reflects, where appropriate, the totality of the criminality involved in all offences.
8.53 Recommendation 44 also includes the proviso that a further sentence cannot be made to commence at a date earlier than the most recent continuous period of custody. This is to prevent the apparent imposition of a sentence which covers a period during which the prisoner was not actually in custody. While the Commission expects that the general principles relating to the backdating of sentences will be followed,101 it has been decided, for the sake of certainty, to include this requirement as the earliest date before which a further sentence will not be able to commence.
Cumulative sentences, escape from lawful custody and prison offences
Recommendation 45
Provisions dealing with multiple sentences should incorporate the provisions in s 26B and 34(2) of the Correctional Centres Act 1952 (NSW) and in s 447A of the Crimes Act 1900 (NSW), which should, in turn, be consistent with the procedures set out in the proposed amendments to s 9(3) of the Sentencing Act 1989 (NSW).
8.54 Section 447A of the Crimes Act 1900 (NSW) provides that an escapee shall, in addition to any sentence imposed for the escape, serve “a term equal to that during which he was absent from prison after the escape and before the expiration of the term of his original sentence, whether at the time of his recapture the term of that sentence has or has not expired”. Section 34 of the Correctional Centres Act 1952 (NSW) provides that a sentence imposed upon an escapee shall be “cumulative on all previous sentences imposed by the court or to which the prisoner is subject”. Section 26B(1) of the Correctional Centres Act 1952 (NSW) provides for penalties which may be imposed by a Visiting Justice for prison offences. The option provided by paragraph (e) is “the extension, by a period that does not exceed 28 days of each minimum or fixed term ... to which the prisoner is subject (other than a term which is cumulative and which has not commenced)”. Subsections (4) and (5) make provision for a corresponding reduction in additional terms as well as the extension of the minimum term beyond the whole of the original sentence and even the statutory maximum for the offence which was originally sentenced.
8.55 Although the Sentencing Act 1989 (NSW) prevails to the extent of any inconsistencies with the above provisions,102 the Commission proposed, in DP 33, that any revision of provisions for cumulative sentences should make allowance for these sections.103
8.56 Two submissions doubted the utility of retaining s 26B and s 34 of the Correctional Centres Act 1952 (NSW) since the sentences imposed under them are likely to be cumulative under common law principles, but recognised that for policy reasons the Government would be likely to retain them.104 The Senior Public Defender pointed to the fact that an attempt to incorporate s 26B and s 34 into the Sentencing Act 1989 (NSW) would involve “incredible complexity”.105 The Commission, however, does not consider that this complexity is apparent. Other submissions supported allowance being made for provisions relating to cumulative sentences contained in the other legislation.106
8.57 Consistent with the Commission’s view that all legislation relating to sentencing should be contained in the same legislation, we recommend that s 26B and 34(2) of the Correctional Centres Act 1952 (NSW) and s 447A of the Crimes Act 1900 (NSW) should be incorporated into the proposed consolidation. The incorporated provisions will be consistent with the proposed s 9(3) so that, for example, s 34(2) should in future provide that a sentence of imprisonment imposed on an escapee should be treated as a further sentence in accordance with the proposed amendments to s 9(3) of the Sentencing Act 1989 (NSW).
Restrictions on imposing cumulative sentences
8.58 Subsection 444(4) of the Crimes Act 1900 (NSW) provides:
Notwithstanding anything in this section, except subsection (5), a magistrate, whether dealing with an offence or offences under section 476 or otherwise, shall not impose, or make an order having the effect of imposing, on any offender:
(a) more than one sentence of imprisonment of penal servitude to be served consecutively on any other sentence of imprisonment or penal servitude then imposed on, or being served by, the offender; or
(b) sentences of imprisonment or penal servitude, to be served consecutively, totalling more than three years.
Subsection 444(5) further provides:
Where a person is serving a sentence of penal servitude or imprisonment at the time of his conviction by a magistrate in respect of 1 or more offences which are committed after the commencement of this subsection and which involved an assault on a prison officer while in the execution of his duty, the magistrate may:
(a) whether or not the person is being dealt with under section 476;
(b) whether or not the sentence being served is cumulative on other sentences already served;
(c) whether or not the person is liable to serve a cumulative sentence or cumulative sentences of penal servitude or imprisonment on the expiration of the sentence being served; and
(d) if:
(i) in a case where the person is not liable to serve a cumulative sentence or cumulative sentences on the expiration of the sentence being served-the sentence being served; or
(ii) in a case where the person is liable to serve a cumulative sentence or cumulative sentences on the expiration of the sentence being served-the last of the sentences to be served, was imposed by a Judge,
direct that the sentence for the offence or for 1 only of the offences, as the case may be, of which the person then stands convicted shall commence, in the case referred to in paragraph (d)(i), at the expiration of the sentence being served or, in the case referred to in paragraph (d)(ii), at the expiration of the last of the sentences to be served.
8.59 The Commission has identified three possible problems with these subsections:
- section 444(4) makes no provisions for partly cumulative sentences;
- there is an ambiguity in s 444(4)(a); and
- section 444(5) covers only assaults against prison officers and does not extend to other offences which a prisoner might commit while in custody.
8.60 Partly cumulative sentences under s 444(4). On their face s 444(4)(a) and (b) deal only with cumulative sentences and do not make provision for partly cumulative sentences. The precursor of the current provision was introduced in 1967107 by the same Act which repealed s 447 of the Crimes Act 1900 (NSW).108 Section 447 expressly allowed for the imposition of partly cumulative and partly concurrent sentences. It would seem, therefore, that it was not intended that s 444(4) should take into account the possibility of partly cumulative sentences.109 Since the intention of s 444(4)(a) could be bypassed by allowing the imposition of partly cumulative sentences totalling more than three years, the Commission recommends that s 444(4)(a) and (b) be amended to refer to multiple sentences totalling more than three years.
8.61 An ambiguity in s 444(4)(a). The Commission’s attention was drawn110 to an ambiguity in s 444(4)(a) of the Crimes Act 1900 (NSW). Two interpretations are possible:
- The first focuses on the position of the offender at the date of sentencing, with the result that already expired cumulative terms are not included for the purposes of the paragraph.
- The second focuses on the phrase “or make an order having the effect of imposing” so that all cumulative sentences imposed, including those already expired, are relevant for the purposes of imposing a further cumulative sentence.
8.62 The Commission prefers the second interpretation, in that the object of the section is to limit the power of Local Courts and has been otherwise strictly interpreted.111 However, the Commission is content to leave the resolution of this issue to the Courts.
8.63 Extension of s 444(5). The Department of Corrective Services submitted that the exception provided by s 444(5) should be extended to include any offence committed by a prisoner.112 A preliminary submission from the Department had noted an instance in 1995 where a magistrate was prevented by s 444(4)(b) from imposing a cumulative sentence upon a prisoner convicted of possession of drugs while in custody who had three years, seven months and 20 days remaining on a minimum term of four years.113 The Chairperson of the Offenders Review Board also submitted that the exception should be extended.114
8.64 However, submissions generally argued that s 444(5) not be extended.115 The Senior Public Defender supported this view on the grounds that offences committed while in prison are a serious aggravating factor and will have implications for parole and the liberty of the offender and, therefore, should be dealt with by the District Court.116 The Commission finds no convincing reasons for the extension of the power of Local Courts with respect to offences committed while in custody.
Cumulative sentences and a right to be released on parole
8.65 Section 24(1) of the Sentencing Act 1989 (NSW) provides that a court, in sentencing an offender to a minimum and additional term totalling three years or less, must “make an order directing the release of the prisoner on parole at the end of the minimum term”.117 Section 24(4) makes provision for offenders who are sentenced to a term of less than three years in addition to an already imposed sentence of more than three years. In such cases the offenders are not entitled to release on the expiry of the minimum term of the further sentence (whose total term is three years or less), but are entitled to release in accordance with the provisions which apply to the first sentence of more than three years.
8.66 Where an offender is sentenced under such circumstances, it is possible that the first sentence (consisting of a minimum and additional term of more than three years duration) will expire before the minimum term of the further sentence (where the minimum and additional terms are less than three years).118 In such circumstances the offender is automatically entitled to release on parole since the full term of the original sentence has expired as well as the minimum term of the cumulative sentence. The Commission, while noting suggestions that offenders in such situations should have no right to automatic release at the expiry of the minimum term and that the Parole Board should decide whether release is appropriate in the circumstances, expressed no opinion on the issue in DP 33.
8.67 The Director of Public Prosecutions supported the suggestion from the Attorney General’s Sentencing Review that offenders should not have a right to be released in such circumstances, and that the Parole Board should decide whether parole is appropriate in the circumstances,119 as did most of the submissions which considered the issue.120 Only one submission supported the automatic release of a prisoner at the termination of the minimum term of the cumulative sentence.121
8.68 The Senior Public Defender urged that there should be flexibility in such circumstances and advocated that a judge imposing a cumulative sentence on top of an already existing sentence of more than three years should be able, where there is, for example, evidence of strong rehabilitation, to direct that the offender be released to parole. Likewise, where the additional offence is serious, or there is no evidence of rehabilitation, the judge may merely order that the offender is entitled to be considered for parole at the end of the newly imposed minimum term.122
8.69 The Commission considers it appropriate, where a further sentence of less than three years is imposed during the term of an existing sentence of more than three years, that an offender should only be subject to assessment by the Parole Board for so much of the remainder of the first sentence as stands at the conclusion of the minimum term of the further sentence. The Commission considers that an offender should not remain subject to assessment by the Parole Board in the period beyond the term of the original sentence. This will mean that if the minimum term of a further sentence of less than three years expires after the end of the additional term of the first sentence, an offender will automatically be entitled to release. However, if the minimum term of a further sentence of less than three years expires before the end of the original sentence, and the Parole Board has prevented release on parole during the remainder of the original sentence, the offender will be entitled to release during what then remains of the further sentence.
8.70 The principal reason for the Commission’s preferred approach is that to act otherwise would be to undermine the decisions of the courts with respect to both the original and further sentences. Extending the supervision of the Parole Board beyond the period of the first sentence would go beyond what the first court intended. So too, giving the Parole Board jurisdiction over the second sentence would go beyond the intentions of the second court which would have been aware that a sentence of less than three years does not attract a requirement for assessment by the Parole Board. In any case, the Commission has also recommended that in future there be a presumption in favour of parole for prisoners who are not serious offenders and who are serving sentences of less than eight years, so that the Parole Board will have to provide reasons for the continued detention of a prisoner following the conclusion of that prisoner’s minimum term.123
FOOTNOTES
1. Parker v DPP (1992) 28 NSWLR 282.
2. Crimes Act 1914 (Cth) s 17A; Sentencing Act 1991 (Vic) s 5(4); Penalties and Sentences Act 1992 (Qld) s 9(2)(a)(i); Crimes Act 1900 (ACT) s 429C; Sentencing Act 1995 (WA) s 6(4).
3. DP 33 at paras 3.26-3.34.
4. Confidential, Submission (22 May 1996) at 12; M Dodson, Submission (26 June 1996) at 2; Department of Corrective Services, Submission (15 July 1996) at 5; Law Society of NSW, Submission (19 July 1996) at 4.
5. S Odgers, Submission (7 June 1996) at 2; N R Cowdery, Submission (17 June 1996) at 3; M Dodson, Submission (26 June 1996) at 2; NSW Council for Civil Liberties, Submission (28 June 1996) at 3; Justice Action, Submission (2 July 1996) at 2; Department of Corrective Services, Submission (15 July 1996) at 3; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 3; Austral News Pty Ltd, Submission [Telephone] (19 July 1996); Law Society of NSW, Submission (19 July 1996) at 3; Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 1; D Plagaro, Submission [Telephone] (7 September 1996).
6. S Odgers, Submission (7 June 1996) at 2; N R Cowdery, Submission (17 June 1996) at 3; Law Society of NSW, Submission (19 July 1996) at 4.
7. Department of Corrective Services, Submission (15 July 1996) at 3-4. A recent study has shown that, in the period 1990-1995, there has been an increase in the number of prisoners commencing shorter sentences, while there has been a decrease in the numbers commencing sentences of more than one year: B Thompson, Trends in Custodial Sentences in NSW: 1990-1995 (NSW Department of Corrective Services, Research Bulletin No 18, September 1996) at 16.
8. See para 7.2. The Commission does not consider that there is anything in this point.
9. See paras 2.2-2.12.
10. M L Sides and Bar Association, Submission (24 June 1996) at 10.
11. J L Swanson, Submission (1 July 1996) at 2; N J H Milson, Submission (3 July 1996) at 2-3.
12. W D T Ward, Submission (25 July 1996) at 2.
13. See S Odgers, Submission (7 June 1996) at 2; NSW Council for Civil Liberties, Submission (28 June 1996) at 3; Justice Action, Submission (2 July 1996) at 2; Department of Corrective Services, Submission (15 July 1996) at 4; Probation and Parole Officers’ Association NSW, Submission (31 July 1996) at 1.
14. Sentencing Act 1989 (NSW) Sch 3 [8] (repealing the then Prisons Act 1952 (NSW) Pt 11).
15. See DP 33 at paras 4.5-4.10, 4.13 and 4.34-4.39.
16. R v Paivinen (1985) 158 CLR 489; Hoare v The Queen (1989) 167 CLR 348; R v O’Brien [1984] 2 NSWLR 112.
17. (1990) 19 NSWLR 112.
18. R v Maclay (1990) 19 NSWLR 112 at 122-124. See also Hoare v The Queen (1989) 167 CLR 348; and R v Moffitt (1990) 20 NSWLR 114 at 127 per Badgery-Parker J.
19. Although some caution must be taken in interpreting the statistics as other factors may be involved in prison population increases: DP 33 at paras 4.35-4.36. See also L W Maxfield, Submission (4 November 1996) at 1. It should be noted that the overall prison population has been slowly decreasing following a peak in October 1993: B Thompson, Trends in Custodial Sentences in NSW: 1990-1995 (NSW Department of Corrective Services, Research Bulletin No 18, September 1996) at 6.
20. Sentencing Act 1991 (Vic) s 10; Crimes Act 1914 (Cth) s 19AA; Sentencing Act 1995 (NT) s 58.
21. DP 33 at para 4.37.
22. These reasons were also argued by the Law Society in a representation to the Minister for Corrective Services: Law Society of New South Wales to the Hon R J Debus MP, 27 November 1995. Time pressures prevented the Law Society from considering the question of the reintroduction of remissions in its submission to the Commission: Law Society of NSW, Submission (19 July 1996) at 13.
23. DP 33 at para 4.39.
24. Confidential, Submission (22 May 1996) at 13; M L Sides and Bar Association, Submission (24 June 1996) at 12-13; N J H Milson, Submission (3 July 1996) at 4; Department of Corrective Services, Submission (15 July 1996) at 12; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 5.
25. M Dodson, Submission (26 June 1996) at 2; NSW Council for Civil Liberties, Submission (28 June 1996) at 3; Justice Action, Submission (2 July 1996) at 3; L W Maxfield, Submission (28 August 1996) at 3, and (4 November 1996) at 1; L McNair, Submission (31 March 1996).
26. Confidential, Submission (22 May 1996) at 14; M L Sides and Bar Association, Submission (24 June 1996) at 12.
27. Department of Corrective Services, Submission (15 July 1996) at 12.
28. Department of Corrective Services, Consultation (26 July 1996); Prison Governors, Consultation (12 August 1996). Statistics supplied by the Department indicate that there has been no substantial change in the rates of prison misconduct charges in the period 1988-1995: Department of Corrective Services, Letter (13 December 1996).
29. Department of Corrective Services, Consultation (26 July 1996); Prison Governors, Consultation (12 August 1996).
30. Department of Corrective Services, Submission (15 July 1996) at 12; W D T Ward, Submission (25 July 1996) at 3.
31. Prison Governors, Consultation (12 August 1996).
32. NSW Council for Civil Liberties, Submission (28 June 1996) at 3; Justice Action, Submission (2 July 1996) at 3. See also L W Maxfield, Submission (4 November 1996) at 1-3.
33. Prison Governors, Consultation (12 August 1996).
34. See paras 11.49-11.63.
35. Release is automatic for sentences of three years or less. For longer sentences release is at the discretion of the Parole Board: see paras 11.49-11.63.
36. R v Thomas (1992) 65 A Crim R 269 at 275-276.
37. Sentencing Act 1989 (NSW) s 7.
38. The Aboriginal and Torres Strait Islander Social Justice Commissioner expressed concern that no proposal was made to redress the harm caused by this provision: M Dodson, Submission (26 June 1996) at 2. Recommendation 40 partly addresses this concern.
39. R v Close (1992) 31 NSWLR 743 at 745 per Sheller JA, at 752 per Hunt CJ at CL.
40. R v Farroukh (NSW CCA, No 60755/95, 29 March 1996, unreported) at 5 per Gleeson CJ, Levine and Dowd JJ agreeing.
41. DP 33 at paras 4.34-4.36.
42. DP 33 at para 4.41.
43. This may lead to a reduction in time spent in gaol. Nevertheless, in the Commission’s view, this is not inappropriate. It will only occur where the Court considers it necessary.
44. S Odgers, Submission (7 June 1996) at 2; N R Cowdery, Submission (17 June 1996) at 3; NSW Council for Civil Liberties, Submission (1 July 1996) at 3; Justice Action, Submission (2 July 1996) at 3; J L Swanson, Submission (1 July 1996) at 2; N J H Milson, Submission (3 July 1996) at 4; Department of Corrective Services, Submission (15 July 1996) at 6-7; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 5; Legal Aid Commission of NSW, Submission (18 July 1996) at 2; Law Society of NSW, Submission (19 July 1996) at 6; District Court, Criminal Law Committee, Submission (6 August 1996) at 1. Victims Advisory Council, Consultation 2 (31 July 1996) did not oppose the proposal.
45. See DP 33 at paras 4.34-4.36. See also W D T Ward, Submission (25 July 1996) at Appendix A where, in order to illustrate that courts frequently depart from the fixed ratio, the Chairperson of the Offenders Review Board provided a list of minimum and additional terms of prisoners whose cases were considered by the Offenders Review Board in the week beginning 2 April 1996. This sample showed that of the 85 cases only 19 (22%) had an additional term as one-third of the minimum term. In 11 cases (13%) the additional term was three times more than the minimum term and in 15 cases (17.5%) the additional term was double the minimum term. See also D Weatherburn, Submission (16 August 1996) at 5.
46. DP 33 at para 4.23.
47. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 10 May 1989 at 7906. See also P Hidden, “The Sentencing Act: An Historical Overview” (1992) 3 Current Issues in Criminal Justice 287 at 291; M Campbell, “Changing Horses” (1992) 3 Current Issues in Criminal Justice 298 at 300-301.
48. R v Radford (NSW CCA, No 60706/90, 21 August 1991, unreported); R v Close (1992) 31 NSWLR 743 at 749 and 758; R v Gower (1991) 56 A Crim R 115 at 118; R v Morgan (1993) 70 A Crim R 368 at 372.
49. Especially R v Maclay (1990) 19 NSWLR 112 at 126, although the issue did not need to be decided in that case.
50. R v Moffitt (1990) 20 NSWLR 114 at 118, 121 and 125; R v Gower (1991) 56 A Crim R 115 at 118-119 per Priestley JA.
51. R v Morgan (1993) 70 A Crim R 368 at 377 per Allen J.
52. R v Moffitt (1990) 20 NSWLR 114 at 118 per Samuels JA, at 134 per Badgery-Parker J.
53. Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525 at 536-538; R v Maclay (1990) 19 NSWLR 126; R v Grmusa [1991] 2 VR 153 at 158; R v Longshaw (1993) 114 FLR 423 at 426-428. See also D Weatherburn, “Sentencing Principles and Sentence Choice” in M Findlay and R Hogg (eds), Understanding Crime and Criminal Justice (Law Book Co, Sydney, 1988) 255 at 263.
54. See the discussion of the factors relevant to fixing a minimum term in Bugmy at 537 per Dawson, Toohey and Gaudron JJ.
55. Power v The Queen (1974) 131 CLR 623 at 629. See also Bugmy v The Queen (1990) 169 CLR 525 at 531 and 536; Deakin v The Queen (1984) 58 ALJR 367.
56. See also DP 33 at para 4.20.
57. See M L Sides and Bar Association, Submission (24 June 1996) at 14.
58. Crimes Act 1900 (NSW) s 444(3).
59. DP 33 at para 4.49.
60. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at para 66. See also DP 33 at para 4.47.
61. Crimes Act 1900 (ACT) s 443 (other than sentences imposed for fine default).
62. Sentencing Act 1995 (NT) s 50.
63. Sentencing Act 1991 (Vic) s 16 (other than sentences imposed: for fine default; on a prisoner in respect of a prison offence or an escape offence; on a serious sexual offender for a sexual offence or a violent offence; and on any person for a sexual or violent offence when the offender was on parole for a similar offence: s 16(1A)).
64. Penalties and Sentences Act 1992 (Qld) s 154.
65. Sentencing Act 1995 (WA) s 88.
66. NSW Council for Civil Liberties, Submission (1 July 1996) at 3; Justice Action, Submission (2 July 1996) at 3; Department of Corrective Services, Submission (15 July 1996) at 7; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 5; Legal Aid Commission of NSW, Submission (18 July 1996) at 3; Law Society of NSW, Submission (19 July 1996) at 6; Confidential, Submission (22 May 1996) at 15; S Odgers, Submission (7 June 1996) at 2; N R Cowdery, Submission (17 June 1996) at 4; J L Swanson, Submission (1 July 1996) at 2.
67. The Criminal Law Committee of the District Court did not support the proposal on the grounds that there appeared to be little benefit to be derived from incorporating a presumption in favour of concurrent sentences: District Court, Criminal Law Committee, Submission (6 August 1996) at 2.
68. W D T Ward, Submission (25 July 1996) at 3.
69. M L Sides and Bar Association, Submission (24 June 1996) at 15.
70. R v Thomas (1992) 65 A Crim R 269 at 275; R v Glenister [1980] 2 NSWLR 597 at 612.
71. R v Astill (NSW CCA, No 60754/91, 17 July 1992, unreported); R v Arnold (1993) 30 NSWLR 73 at 76 per Hunt CJ at CL.
72. Sentencing Act 1989 (NSW) s 9(1) and 9(2).
73. Sentencing Act 1989 (NSW) s 9(3).
74. NSW CCA, No 60452/92, 2 September 1993, unreported. See also R v Mackenroth (NSW CCA, No 60096/92, 3 March 1994, unreported).
75. The origin of the common law power is by no means certain: see R v Hillsley (1992) 105 ALR 560 at 568-569 per Gallop J. In that case the Federal Court observed that the express repeal of s 447 of the Crimes Act 1900 (ACT) in 1986 and its replacement by a new s 443 (Crimes (Amendment) (No 4) Act 1986 (ACT) s 8 and 9), meant that the power to pass partly cumulative and partly concurrent sentences had been removed: R v Hillsley at 569 per Gallop J and 562 per Black J. Section 447 of the Crimes Act 1900 (NSW) was repealed in New South Wales in 1967.
76. NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 5; Confidential, Submission (22 May 1996) at 15; N R Cowdery, Submission (17 June 1996) at 4; J L Swanson, Submission (1 July 1996) at 2; Department of Corrective Services, Submission (15 July 1996) at 7; W D T Ward, Submission (25 July 1996) at 3-4.
77. Legal Aid Commission of NSW, Submission (18 July 1996) at 3; Law Society of NSW, Submission (19 July 1996) at 7; M L Sides, Submission (24 June 1996) at 16.
78. See DP 33 at paras 4.52-4.54.
79. R v Blanchard (NSW CCA, No 60420/90, 10 September 1991, unreported); R v Arnold (1993) 30 NSWLR 73.
80. (1993) 30 NSWLR 73.
81. Confidential, Submission (22 May 1996) at 15; J L Swanson, Submission (1 July 1996) at 2; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 5; W D T Ward, Submission (25 July 1996) at 3.
82. J L Swanson did not express a view on the separate question.
83. See DP 33 at para 4.52.
84. Forbes Chambers, Consultation (13 August 1996).
85. Recommendation 41.
86. Recommendation 44.
87. Although the Court of Criminal Appeal has held that serious offences should be separately charged (and therefore placed outside the scope of the procedure): R v Morgan (1993) 70 A Crim R 368.
88. DP 33 at paras 4.42-4.46.
89. N J H Milson, Submission (3 July 1996) at 4; W D T Ward, Submission (25 July 1996) at 3; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 5.
90. M L Sides and Bar Association, Submission (24 June 1996) at 15.
91. Department of Corrective Services, Submission (15 July 1996) at 7.
92. Section 24A of the Criminal Procedure Act 1986 (NSW) which commenced on 3 December 1996 (inserted by Criminal Procedure Amendment (Sentences Adjustment) Act 1996) now makes legislative provision for a court to adjust the date of commencement of a cumulative sentence and to adjust the length of the cumulative sentence on the quashing or variation of an earlier sentence.
93. Department of Corrective Services, Submission (15 July 1996) at 7.
94. N R Cowdery, Submission (17 June 1996) at 4; M L Sides and Bar Association, Submission (24 June 1996) at 16; Department of Corrective Services, Submission (15 July 1996) at 8; N J H Milson, Submission (3 July 1996) at 4-5.
95. N R Cowdery, Submission (17 June 1996) at 4.
96. Department of Corrective Services, Submission (15 July 1996) at 9-10.
97. Department of Corrective Services, Submission (15 July 1996) at 10.
98. Legal Aid Commission of NSW, Submission (18 July 1996) at 3-4; Law Society of NSW, Submission (19 July 1996) at 7-8. See also Department of Corrective Services, Submission (15 July 1996) at 13.
99. (1993) 30 NSWLR 73.
100. At para 8.47.
101. See R v Deeble (NSW CCA, No 60047/91, 19 September 1991, unreported).
102. R v Andrews (NSW CCA, No 60621/91, 28 April 1993, unreported).
103. DP 33 at para 4.57.
104. Legal Aid Commission of NSW, Submission (18 July 1996) at 4-5; Law Society of NSW, Submission (19 July 1996) at 8.
105. M L Sides and Bar Association, Submission (24 June 1996) at 17.
106. W D T Ward, Submission (25 July 1996) at 4; Confidential, Submission (22 May 1996) at 15; J L Swanson, Submission (1 July 1996) at 2; Department of Corrective Services, Submission (15 July 1996) at 10.
107. Crimes (Amendment) Act 1967 (NSW) s 4(a). The section was amended to its current form by Crimes and Other Acts (Amendment) Act 1974 (NSW) s 9(g).
108. Crimes (Amendment) Act 1967 (NSW) s 4(c).
109. The repeal of s 447 of the Crimes Act 1900 (ACT) was interpreted by the Federal Court as removing the power to impose partly cumulative and partly concurrent sentences: R v Hillsley (1992) 105 ALR 560 at 569 per Gallop J, at 562 per Black J.
110. Department of Corrective Services, Submission (15 July 1996) at 13; Legal Aid Commission of NSW, Consultation (7 August 1996).
111. See R v Hayes [1977] 1 NSWLR 364 which considers s 444(4)(b) of the Crimes Act 1900 (NSW).
112. Department of Corrective Services, Submission (15 July 1996) at 13.
113. Department of Corrective Services, Preliminary Submission (18 October 1995).
114. W D T Ward, Submission (25 July 1996) at 4.
115. N R Cowdery, Submission (17 June 1996) at 6; M L Sides and Bar Association, Submission (24 June 1996) at 18; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 5; Confidential, Submission (22 May 1996) at 15.
116. M L Sides and Bar Association, Submission (24 June 1996) at 18.
117. Offenders sentenced to a total term of more than three years have a right to release only on the expiry of their sentences, although they are eligible to be considered for release to parole by the Parole Board at the end of their minimum terms: See paras 11.49-11.63.
118. DP 33 at para 4.64.
119. N R Cowdery, Submission (17 June 1996) at 6.
120. Department of Corrective Services, Submission (15 July 1996) at 14; Confidential, Submission (22 May 1996) at 16; W D T Ward, Submission (25 July 1996) at 4.
121. NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 5.
122. M L Sides and Bar Association, Submission (24 June 1996) at 18-19.
123. Recommendation 63. See paras 11.53-11.58.
