Last Updated: 20 April 2009

List of subheadings:

Remissions under the Crimes Act 1914 (Cth)
Scope of s 19AA
The Repeal of s 16G
- Effect of Repeal of s 16G

Commentary on Remissions under the Crimes Act 1914 (Cth)

Remissions for federal offenders are governed by s 19AA of the Crimes Act 1914 (Cth).

Scope of s19AA

Section 19AA(1) provides that State or Territory laws governing remissions apply to federal offenders serving time in the prisons of that State or Territory.

However, this section expressly excludes the application to federal offenders of state or territory laws that enable:

• the remission of a non-parole period, or
• the remission of periods of imprisonment equivalent to pre-release periods of imprisonment in respect of recognizance release orders.

Note: Remissions or reductions remain available to federal non-parole periods and pre-release periods due to industrial action by prison warders: s 19AA(4).

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The Repeal of s16G

When imposing a sentence, there is no statutory requirement for the court to have regard to the absence of remissions.

Formerly, s 16G required the court, in States or Territories which did not have remissions, to take that fact into account and adjust accordingly, the length of sentence imposed on a federal offender. Section 16G was repealed for all federal sentences after 16 January 2003 (see Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth)). Section 16G was repealed following the abolition of remissions in most States and Territories. [1]

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Effect of Repeal of s 16G

Courts in jurisdictions that have abolished remissions may need to consider the effect of the repeal of s 16G. Care must be taken when reference is made to sentencing guidelines predicated on s 16G. [2] The NSW Court of Criminal Appeal has repeatedly warned against the application of a bare arithmetic formula to simply adjust pre-repeal guidelines. [3] Caution must also be exercised in the use of sentencing statistics and when comparing sentences imposed for like offences prior to the repeal of s 16G. [4]

In R v Paliwala, the NSW Court of Criminal Appeal explained that the repeal of s 16G is likely to result in an increase in sentencing patterns, as sentencing courts are no longer required to make a downward adjustment in sentencing to account for the absence of remissions in that state. [5]

In R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430, Wood CJ stated:

The effect of the decisions in Studenikin (2004) 60 NSWLR 1, Dujeu (2004) 146 A Crim R 121 and Mas Rivadavia 2004 61 NSWLR 63 is that while the repeal of s 16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre-repeal cases, which had been the subject of a s 16G discount, the proper approach is to set a sentence that meets the requirements of s 16A(1) of the Crimes Act 1914, and the relevant objectives of sentencing, without giving a s 16G discount. [6]

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Footnotes

[1] Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2002, 9535 (L Anthony, Minister for Children and Youth Affairs).

[2] R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430, [22].

[3] R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430, [19]; R v Studenikin [2004] NSWCCA 164, [50]; R v Dujea [2004] NSWCCA 237, [43]; R v Mas Rivadivia [2004] NSWCCA 284, [65]-[87]; R v SC [2008] NSWCCA 29, [34]; R v Chea [2008] NSWCCA 78, [42].

[4] R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430, [22]; R v Tran [2007] QCA 221; (2007) 172 A Crim R 436, [35].

[5] R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451, [41].

[6] R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430, [18].