Criminal Law—Sentence of imprisonment—Prisoner released on parole—Parole revoked—Prisoner returned to prison to serve balance of sentence—Whether entitled to remission for part of sentence served before release on parole—Prisons Act 1952 (N.S.W.), s. 41 (3)*—Prisons Regulations 1968 (N.S.W.), reg. 110 (1980) 147 CLR 134 at pp 136-137.

Decision

December 5. THE COURT published the following written reasons for judgment: -
On 13 June 1968 the applicant was sentenced to imprisonment for twelve years on each of five charges of rape, the sentences to be served concurrently. On 14 March 1975 he was released on parole pursuant to the provisions of the Parole of Prisoners Act 1966 (N.S.W.). On the 20 October 1978 the Parole Board revoked the parole order, and pursuant to s. 6 (3) of the Act a warrant was issued for the applicant to be returned to a prison to serve the unexpired portion of his term of imprisonment. The unexpired portion of the sentence amounted to five years two months and twenty eight days. No reason was given for the revocation, although it is noted that at the time that the Board made its decision the applicant was already in custody in the Metropolitan Remand Centre in Sydney pending the hearing of a matter in the Central Court of Petty Sessions. No information relating to that matter is before this Court; and it is of no relevance to the present problem. (at p136)

2. The sole question which the applicant desired to have determined by this Court was whether he is entitled to a remission of sentence pursuant to the provisions of reg. 110 of the regulations made under the Prisons Act 1952 in respect of that part of his sentence which he served from the 13 June 1968 to 14 March 1975. The respondent was represented by Mr. Sullivan, the Solicitor-General for New South Wales. He did not oppose the application for special leave to appeal, but argued that the question in issue should be answered in the negative. After a full hearing of the matter on 10 October 1980, the Court ordered that special leave be granted, the appeal allowed, with costs, and a declaration issue confirming the applicant's entitlement and the consequential fact that he was entitled to immediate release. The conclusion that he was entitled to immediate release was asserted by Mr. Porter, counsel for the applicant, and conceded by the Solicitor-General. The Court advised that it would publish its reasons later, and this we now do. (at p136)

3. It is convenient to set out the material provisions of the Prisons Act and regulations. Section 41 (3) of the Act provides as follows:
"Prisoners shall be granted remission of sentences as prescribed by regulations under this Act. Such regulations may include provisions for or with respect to -
(a) the circumstances in which and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Corrective Services Commission (NSW)

Details

AGLC: Smith v Corrective Services Commission (NSW) [1980] HCA 49
Case: [1980] HCA 49
Decision Date: 5 December 1980

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Smith against a decision of the Corrective Services Commission of New South Wales. The dispute concerned the validity of certain directions issued by the Commission regarding the remission of sentences for prisoners. Smith, a prisoner, sought to challenge the application of these directions to his sentence.

The central legal issue before the High Court was whether the directions issued by the Corrective Services Commission were lawful and validly made under the relevant legislation, specifically the *Prisons Act 1952* (NSW) and the *Crimes Act 1900* (NSW). The court had to determine if the Commission had the statutory authority to make such directions and whether those directions were consistent with the legislative framework governing the remission of sentences.

The Court reasoned that the power to make directions concerning remission was vested in the Governor, not the Corrective Services Commission. It held that the Commission had acted *ultra vires* by issuing directions that purported to alter or clarify the statutory provisions for remission. The principles applied centred on the proper interpretation of statutory powers and the rule that administrative bodies cannot exercise powers not expressly or impliedly granted to them by Parliament. The Court found that the directions were therefore invalid.

Orders