Kelleher v Parole Board

Kelleher v Parole Board - [1984] HCA 77 - HCA 1984 case summary — Zoe

[36]

8. Mr. McHugh, counsel for the appellant, advances a preliminary argument in addition to his submission touching the effect of the Royal Visit remissions. The argument is that the proper construction of s. 6 of the Parole Act leads to the conclusion that the release of a prisoner on parole does not stop the sentence from continuing to run its course. The section does not displace the operation of the common law whereby once begun a sentence takes effect whether or not the prisoner is in custody throughout its term: cf. Whan v. McConaghy [1984] HCA 22; (1984) 58 ALJR 299. The parole order would then be spent, assuming it was not revoked earlier, at the time when had the parolee remained in prison and enjoyed both the remissions earned under the Prisons Act and the Royal Visit remissions he would have been entitled to be released. An analogy is sought to be drawn with s. 41 of the Prisons Act, where sub-s. (4) makes it quite clear that should a prisoner, having been released conditionally in consequence of remissions granted and having thereafter breached those conditions, be returned to prison "to serve the unexpired portion of his term of imprisonment" there can be no question of an extension of the term. In such a case time runs in favour of a prisoner on conditional release. However, the analogy which counsel seeks to draw is not a good one. There is no reason to draw a parallel between early release on parole and early release by reason of earned remissions. They are quite distinct concepts referable to the imprisonment and rehabilitation of offenders. They are of different origins and exhibit different incidents and objectives. More importantly, the statutory provisions relating to each are quite different. Section 6 of the Parole Act makes it quite clear that on release on parole the term of imprisonment ceases to run. There is no support in the Act for the view that a parolee is serving his sentence whilst he is on parole. Section 6(3) is quite explicit. When a parole order is revoked, the parolee may be returned to prison to serve the unexpired portion of his term of imprisonment. The unexpired portion is the difference between the nominal term imposed upon the offender by the court (cf. the definition of "term of imprisonment" in s. 4 of the 1983 Act) and the portion of that term that had been served at the time of the prisoner's release upon parole. The words in parenthesis in s. 6(3) require the period spent on parole to be disregarded. The legislative scheme is completed by s. 6(4), which provides that upon the expiration of the parole period if there has been no revocation of the parole order then the parolee will be deemed to have served the term of imprisonment in respect of which the parole order was made. It is not until the parole period is successfully completed that the parolee is discharged from the term of imprisonment. Furthermore, the submission is inconsistent with the reasoning of this Court in Smith v. Corrective Services Commission (N.S.W.) [1980] HCA 49; (1980) 147 CLR 134 and with the unreported decision of the Court of Appeal in Husson v. The Honourable Mr. Justice Slattery, delivered 14 October 1982.

[54]

16. Nor is the appellant's case assisted by reliance upon s. 9 of the Parole Act. Leaving that section aside for a moment, the practical effect of the Parole Act in its relation to remissions is that a prisoner may be released on parole for any period up to the expiration of his nominal term of imprisonment. As I have explained, that term ceases to run during the period of parole. Unless the parole order is earlier revoked, upon the expiration of the parole period the parolee shall be deemed to have served the term of imprisonment and be wholly discharged therefrom. However, if before the expiration of the parole period the order is revoked then he may be returned to prison to serve the period of imprisonment which remained to be served at the time when he was released on parole. That period will be the unexpired portion of his term of imprisonment less any remissions, including any additional Royal Visit remissions which are due to him under the instruments which I have examined. The question then is whether such an operation may be said to "limit or affect in any manner the Royal prerogative of mercy". If it does, then one must find a different construction of the Act so as to allow full force and effect to the prerogative. This brings me back to the question of the intention of the Royal Grant. Given an intention to provide, by way of the Royal prerogative, additional or extra remissions of the same kind and effect as the remissions received by virtue of the Prisons Act, it follows that the scheme of the Act as I have outlined it does not limit or affect in any manner the enjoyment of those remissions as it was intended to be enjoyed by the Governor. In the circumstances as they touch the appellant, his parole having been revoked prior to the expiration of the parole period, he has been returned to prison to serve the unexpired portion of his term of imprisonment. Assuming that there will be no forfeiture of any part of the Royal Visit remissions the date of his release will be advanced by 205 days by reason of those remissions. There is simply no way, consistently with their terms, to apply the instruments granting the Royal Visit remissions so as to shorten the effective period of parole.

[58]

3. In the Court of Appeal, the appellant's argument appears to have been confined to the submission that the effect of the Royal Visit remissions had been to foreshorten the nominal term of imprisonment to which the appellant had been sentenced with the consequence "that his nominal sentence ... expired in December 1982 and the Parole Board had no power to revoke his parole in June 1983". The case was apparently argued by both sides on the basis that that submission did not necessarily involve an attack on the power of the Parole Board to fix the parole period which it had purported to fix. While pointing to the problems of inconsistency involved in that approach, Street C.J. (with whose judgment Priestley J.A. and Lee A-J.A. agreed) stated his willingness "to acquiesce in the attitude adopted at the Bar table, namely that the court should direct its attention only to the effect in law of the Royal Visit remissions upon the length of the nominal term of the sentence". The Court of Appeal concluded that the effect of those remissions had not been, as the appellant contended, to foreshorten the nominal term of imprisonment. It had been to conditionally reduce or remit the actual custodial period which the appellant was required to serve while leaving that nominal term intact. That conclusion effectively disposed of the appellant's case before the Court of Appeal. In this Court, the appellant, without objection, advanced a broader attack. No doubt profiting from Street C.J's observations as to the inherent inconsistency in the approach adopted before the Court of Appeal, the objects of the attack were widened to include the Board's power to fix the parole period which it had purportedly fixed and the content of the attack was enlarged to include at least one new argument. No objection was raised on behalf of the respondents to the broadening of the direction and content of the appellant's case and there would appear to be no disputed or unresolved questions of fact. That being so and in view of the fact that the case involves personal liberty, it is appropriate to approach the appeal on the basis upon which the appellant now seeks to have it decided.

[63]

8. The major premise of the appellant's primary submission was that the remissions pursuant to the Royal prerogative were of a different character to the ordinary remissions of sentence under the Prisons Act in that they were in the nature of a pardon and operated to cancel 205 days of the sentence imposed and to foreshorten the appellant's nominal term of imprisonment from ten years to nine years and 160 days (cf., as to the nature of a pardon, Reg. v. Foster (1984) 2 All ER 679, at pp 684ff.). That being so, it was said to follow from the reasoning underlying the decision in Blucher that the maximum parole period which the Board had been entitled to determine in the appellant's case was the balance of that foreshortened nominal term. Alternatively, it was argued that, if the nominal term of imprisonment had expired (cf. Whan v. McConaghy [1984] HCA 22; (1984) 58 ALJR 299, at pp 302,304), there was no power in the Parole Board either to revoke the order releasing the appellant on parole or to order that the appellant be returned to prison. In the Court of Appeal, Street C.J., in a closely reasoned judgment, rejected the major premise of this argument. His Honour held that the Royal prerogative remissions to which the appellant had become entitled were of a similar character to the ordinary remissions under the Prisons Act and operated not as a pro tanto pardon or as a foreshortening of the appellant's nominal sentence but as a foreshortening of the custodial period which he was required to serve under that sentence. There is obviously room for differences of opinion on the question whether, as a matter of legal theory, a remission should be seen as ordinarily partaking of the nature of a pardon or "forgiveness" (cf., e.g., A.T.H. Smith, "The Prerogative of Mercy, the Power of Pardon and Criminal Justice", (1983) Public Law 398, at pp.399,417ff., 424-425; R.F.V. Heuston, Essays in Constitutional Law, 2nd ed. (1964), pp 71-72; Re Royal Prerogative of Mercy upon Deportation Proceedings (1933) 2 DLR 348, at p 349) or as ordinarily involving no more than a release from the obligation to serve a nominal sentence which remains unaffected. In the view I take however, the outcome of the appeal to this Court does not depend either upon the answer to that question or upon the precise nature or effect of the particular Royal Visit remissions to which the present appellant became entitled. That being so, it is unnecessary to do more than indicate a tentative view that, whatever be the ordinary theoretical meaning of "pardon" or "remission", the Governor's powers under cl.IX of the Letters Patent Constituting the Office of Governor (New South Wales Parliamentary Handbook, 19th ed. (1972), Part III, p.4) to grant "a pardon, either free or subject to lawful conditions, or any remission of the sentence passed ... or any respite of the execution of such sentence" empower him to grant a release from the obligation to serve the nominal sentence while leaving it intact and that the express words of the actual remissions in the present case ("additional remissions", "extra remission", "operate in all cases so as to advance the date of the prisoner's release") and the provision for forfeiture plainly indicate that what was in fact granted was a "remission", in that limited sense, of the obligation to serve part of the sentence and not a cancellation or reduction of the nominal term of imprisonment.

[69]

13. The general objectives of the parole system under the Act were, of course, calculated to benefit rather than to disadvantage prisoners. It is unlikely that, viewed at the time when a parole order was made, its advantages would be seen otherwise than as plainly outweighing any disadvantages from the prisoner's point of view. It is, nonetheless, impossible to see release on parole on the terms and conditions upon which the appellant was released otherwise than as an incomplete remission of the punishment of imprisonment during the parole period. While stone walls and iron bars were removed, many of the other restrictions and restraints which imprisonment involves were preserved in a more flexible form. In contrast, the remissions pursuant to the Royal prerogative of mercy to which the appellant was entitled were, as has been said, not partial in the sense of substituting a less stringent or more flexible form of punishment during the periods in which they operated. During those periods, they were a complete release from or remission of the punishment imposed by the sentence. The question arises whether to construe s.6(2) of the Act as entitling the Board to subject the appellant to the restraints and restrictions of parole during the period in respect of which remissions granted to him under the Royal prerogative of mercy would otherwise operate to free him from custody would be to give s.6(2) an operation which limited or affected in any manner that prerogative. The conclusion which I have reached is that it would. So to construe s.6(2) would, in my view, produce a situation where a remission under the Royal prerogative of mercy ceased to have its intended effect that a prisoner was released from all the custodial restraints involved in imprisonment during the remitted period of his term in that the remitted part of his term or time of imprisonment would be converted into a period during and by reference to which the prisoner could be subjected to the restrictions and restraints of parole. That being so, the overriding effect of s.9 of the Act was that that construction of s.6(2) was to be avoided and the sub-section was required to be construed so as to exclude from the maximum parole period, which the Board was entitled to determine, periods in respect of which the appellant would be entitled to enjoy the benefit of the Royal prerogative remissions. It follows that, on the basis upon which the appeal has been conducted, the appellant's parole period expired, at the latest, on 8 December 1982 and that at that time he was, by reason of the provisions of s.6(4) of the Act, deemed to have served the whole of his nominal term of imprisonment.

At a glance

Court

Decision date

Before

Source

Judgment (71 paragraphs)

Kelleher v Parole Board (NSW) [1984] HCA 77; (1984) 156 CLR 364 (29 November 1984)

Parties

Legislation Cited (3)

Cases Cited (6)