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Remissions

The content on this page was last reviewed on 22 January 2021.

1. Overview

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

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. 1

However, s 19AA(1A) expressly states that ‘the law does not remit or reduce the non-parole period or pre-release period of a federal sentence’, except where the remission or reduction is awarded ‘by reason of industrial action taken by prison warders’. 2

2. The Repeal of s 16G and s 19AG

When imposing a sentence, there is no statutory or common law requirement for the court to have regard to the absence of remissions in the State or Territory in which the offender is to be sentenced.

Formerly, sections 16G and 19AG 3 required a court, in States or Territories which did not have remissions, to take that fact into account and adjust the length of sentence and the non-parole period or pre-release period imposed on a federal offender. Sections 16G and 19AG were repealed for all federal sentences imposed after 16 January 2003. 4 In his Second Reading Speech to Parliament, the Minister noted that this amendment followed ‘the abolition of remissions in most [S]tates and [T]erritories and the move towards removal of remissions in the remaining jurisdictions’. 5

3. Effect of Repeal of s 16G and s 19AG

Courts in jurisdictions that have abolished remissions may need to consider the effect of the repeal of ss 16G and 19AG on historic sentences. Care must be taken when considering sentencing guidelines that predate the repeal of these sections. 6 However, the Court of Criminal Appeal of the Supreme Court of New South Wales has warned against the application of a bare arithmetic formula to adjust pre-repeal sentencing guidelines. 7

Caution must also be exercised in the use of sentencing statistics when comparing sentences imposed for like offences. 8

Consideration may also need to be given to the previous effect of ss 16G and 19AG where a Court is re-sentencing on an appeal after 16 January 2003 where the sentence appealed from was imposed before that date, and in considering parity where a co-offender was sentenced prior to 16 January 2003.

In R v Paliwala [2005] NSWCCA 221, the NSW Court of Criminal Appeal considered at [41] that the repeal of s 16G was likely to result in ‘an increase in sentencing patterns’.

In R v Bezan [2004] NSWCCA 342, Wood CJ stated at [18] that:

The effect of the decisions in R v Studenikin [2004] NSWCCA 164, R v Dujeu [2004] NSWCCA 237 and Mas Rivadavia [2004] NSWCCA 284 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.

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Notes:

  1. In Tasmania, pursuant to s 86 of the Corrections Act 1997 (Tas), remissions of up to 3 months can be granted by the Director of Corrective Services in respect of sentences imposed prior to 1 November 2020. On 1 November 2020, the Corrections Amendment (Prisoner Remission) Act 2019 (Tas) commenced. This Act abolished remissions in Tasmania for sentences imposed following 1 November 2020. The Australian Capital Territory allows for the remission of sentences: see Crimes (Sentence Administration) Act 2005 (ACT) s 313. In Victoria, the Secretary may reduce the length of a sentence being served by a person on account of ‘good behaviour while suffering disruption or deprivation — (a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or (b) in other circumstances of an unforeseen and special nature’: Corrections Act 1986 (Vic) s 58E. See also Sentencing Act 1995 (NT) s 114; Corrective Services Act 2006 (Qld) s 401.
  2. Crimes Act 1914 (Cth) s 19AA(4).
  3. Note that the Crimes Act 1914 (Cth) contains a new s 19AG, which was inserted following the repeal of the previous s 19AG. The new provision does not relate to remissions.
  4. See Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) sch 3.
  5. Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2002, 9535 (L Anthony, Minister for Children and Youth Affairs).
  6. R v Bezan [2004] NSWCCA 342, [22].
  7. R v Bezan [2004] NSWCCA 342, [19]; R v Studenikin [2004] NSWCCA 164, [50]; R v Dujeu [2004] NSWCCA 237, [43]; R v Rivadivia [2004] NSWCCA 284, [65]–[87]; R v SC [2008] NSWCCA 29, [34]; R v Chea [2008] NSWCCA 78, [42].
  8. R v Bezan [2004] NSWCCA 342, [22]; R v Tran [2007] QCA 221, [35]; Navasardian v R; Petrosyan v R [2009] NSWCCA 108, [38].