Vella, D.S. v Commissioner of Police

C A T C H W O R D S

Federal offender serving sentence in

N.S.H. prison -

unconditional release - power of Australian Federal Police

to-

re-arrest relying on revocation of parole order

- earlier return

to custody without implementation of statutory procedures

whether offender has serv?d sentence - "reduction or remission of

sentences or minimum terms of imprisonment" - applicability of

N.S.W. "street time" provisions	to federal offenders.
JLIdICinrV Act 1903 3.39B

Commonwealth Prisoners

Act 1967 ss.3,5,6,7,9,10,12,13,14,17,19.

Prisons Act-, 1952 (N.S.W.) 5.41.

Probation and Parole Act, 1983

(N.S.W.) ss.4,25,41.

Prisons Regulations, 1968 (N.S.W.) Part XV.

Probation and Parole Regulation, 1984

( N . S . W . )

DENNIS SAMUEL VELLA

v. COMMISSIONER OF POLICE

No. NSW G44 of 1985

McGregor J.

14 June 1985

Sydney

IN THE FEDER-AL COURT OF .4USTRALIA 1

> .

F E W SOUTH WXES DISTRICT REGISTRY	1	No. NSW G44 of 1985
\

DIVISION	GENERAL	)
' ,

BEZWEEN

DEEJNIS SAMUEL VELLA

Applicant

AND

COMMISSIONER OF POLICE

Fespondent

MINUTE OF OPDER

aJIIJDGE MFXING ORDER:	McGregor J.
DATE ORDER MADE :	14 June 1985
LMERE MADE	Sydney .

THE COURT ORDERS THAT:

The application is dismissed.

N o t p

Settlement and entrv

of orders is dealt

with In Order 36

of the Federal Court Rules.

. .

IN THE FDERAL COURT OF ALTSmLI.3 )

NEW SOUTH WALES DISTRICT REGISTRY )

DIVISION

GENERAL

BETWE3I

DENNIS SPMJIX VELLA

Applicant,

AND

COMMISSIONER OF POLICE

Fespondent

McGrecror J.

D a t e :

14 June 1985

REASONS FOR ,JUDGMENT

application dated 28 February

1985 DENNIS

SAMUEL

!applicant) sought the

following declarations and order

"1.

A declaration that, the Applicant is not liable to serve any-further term of imprisonment in

relation to the

conviction

and

sentence

imposed on him

by the Dlstrict Court

at Sydney

3 March 1978

for

an offence aaainst the

Customs Act 1901 (Cth) s.Z33B(l)(d).

order restraininu the Respondent and

all

members of the Australian Police

Force from

arrestina

the

Applicant.

holding

him

custody and delivert29 him

to any prison in

relation to the conviction of [SIC] sentence imposed on him bp the District Court at Sydney on 3 March 1978 for an offence agalnsL the

Customs Act l901 (Cth) ~.233B(l)(d).

3. A declaration

that

the

sentence

imposed

Chim3 by the District Court

at Sydney

on 3

March 1978 expired

on 31 January 1955."

By Notice of Motion dated 4 March 1985 khe applicant souqht interlocutory relief in the terms of para.(?) above.

both the Application and the Notice

of Motion the

COMMISSIONER OF POLICE (the Commissioner) is named

as respondent.

On 7 March 1985 Ronald Alwyn Grey, Commlssioner

of the australian

Federal Police, entered

a Notice of Condltional Appearance.

The facts of this

matter

are not

dispute.

The

applicant at the District

Court.

Sydney, on

3 March

1978 was

convicted of an offence aualnst s.233B(l)(d)

of the Customs Act

1901 which, shortly

put. 1s the offence

of being knowinqly

concerned in the importation into Australia of prohibited imports

(in this instance, heroin). On

3 March 1978

the applicant was

sentenced to

term of

9 years’ imprisonment to date from

February 1978 with a

non-parole period expiring on 30 June

1982.

Pursuant to the sentence the applicant was conveyed

to and became

an Inmate of prisons including the Cessnock Correctloe Centre.

On 6	September 1982 Sir Ninian Martin Stephen, Governor-General

nf the

Commonwealth of Australia. acting with the advice of the

Attorney-General and in pursuance

5 .5

of the

Commonwealth

Prisoners Act

1967

(the

Act) directed that the applicant be

released subject to certain conditions from prison

on a day not

heinq

before

September

1982.

19 September 1982 the

applicant was released to parole.

11 December 1984

the Governor-General, actinq with

the advlce of the Attorney-General pursuant to s.5(5) of the

Act,

revoked the Parole Order. Thereafter,

on 17 January

1985 the

I .

applicant, was arrested

and taken to the Central Industrial Prison

at Malabar, though without first beinq taken before

a prescribed

authority as defined in the Act

s.3.

On or about 30 Januargr 1985 Paul Stephen Crulrkshank,

Second 0f.ficer in charue of the General Office, Long Bay Complex

nf Prisons at Malabar. calculated the expectsd

date of release of

the

applicant.

In doing so he took

into

account

various

discounts (to use

a neutral word) to which the applicant might be

entltled in respect of

the

periods he had remained in custody

had been on parole. One

such discount he applled was in respect

of what

has been referred to

as "street tlme",

i.e. the period

during whlch a prisoner is on parole.

January 1985 the

applicant	was	released from custody at the Central Industrial
Prison.

William Foster Dickens. the Solicitor

for the applicant,

stated in an affidavit (dated 28 February

1985)

that he

was

informed by the applicant and believed that shortly before his

release the Superintendent (not named1 of the Central Industrial

applicant

had

a csnversatlon

with

the

Deputy

Prison to

the following effect

DEPUTY SUPERINTENDENT: "You are to be released

now: it is instant release."

APPLICANT:

"Is this full tlme release, or am

subject to conditions?"

4 .

DEPUTY SUPERINTENDENT: "You will

released

unconditionally:

there

1 s

requirement

reporting to

a parole officer or anyone."

In the same affidavit Mr. Dickens stated that

he had had

a conversation

with an officer

the

Department

the

Attorney-General in Canberra who sald words	to	the followinu
effect -

"Dennis Vella should not

have

been released

February 3 . He still has 496 days of his sentence to serve. The Australian Federal Police have been

given

the

revocation

of his licence

and

will

re-arrest him

on the authoritv of that document.

The document is bemu or has

been taken from Lonq

Bay

Gaol and

has

been qiven to the liustralim

Federal Police in Sydney."

In the affidavit there

also set out a statement attributed

the applicant's parole officer

to the effect that the applicant's

parole order was revoked

the basis that he had failed to

comply with conditions

of the parole order, viz. he had failed to

notify change of address and had absented himself from the

supervision of his parole officer.

"la) he was not in breach of condition

(iv) or any

other condition of his

parole order dated

September 1982 at the time

of his arrest on 17

January 1985 or

at the time

of the revocation

of his parole on 11 December, 1984.

(b) the

said

parole

order

was

not

revoked

cancelled in accordance with the provisions of

the Commonwealth Prisoners

Act, 1967.

5 .

(c)

his arrest on 17 January 1985 was made without lawful authority.

1 :

(d) the constable who conveyed him to prison on

. I

' .	January 1985 did so without lawful authority. (e) his imprisonment from
! .

17 January 1985 to 31

January 1955 was without lawful authority.

( € 1

the sentence imposed upon him by the District Court at Sydney on 3 March 1978 expired on or about 31 January 1985.

(g)

If the sentence

had not otherwise expired on

31 January

1985. it expired on that date by

virtue of his

discharge

from

imprisonment

pursuant to	s.17(1) (a) of the Commonwealth
Prisoners Act.	I'

On 7 March 1985 counsel

then

appearing

€or

the

respondent stated that it was proposed to arrest the applicant,

take hlm before the prescribed authority and seek an order under

s . 7 ( 2 )

the Act to convey him to prison. These proceedings

seek to prevent these activities.

Legislation

referred

counsel

included

the

Judiciarv Act

1903 s.39B -

I	"(1) The original jurisdiction of the Federal

Court

Australia includes

jurisdiction with

respect to any matter in whlch a writ of mandamus or prohfbition or an mjunctlon is souuht against an officer or officers of the Commonwealth."

The Commonwealth

Prisoners .Act 1967 includes

the

following sections

"3.(1) In this Act, unless the contrary intention

appears -

'federal offender' means

a person convicted of an

offence against a law of the Commonwealth:

'minimum term of imprisonment' means that part of a

I _ .

term of imprisonment to which

a person has been

sentenced by a court that is fixed by the court

the period during which the person is not eligible

to be released on parole:

...

'parole

order'

means

an prder

made

under

sub-section (1) -of section 5 of this Act and, if such an order has been amended, means the order as amended:

'prescribed authority' means

fa)

a person who holds office as a Chief, Police,

Stipendiary, Resident or Special Magistrate of

a State and in respect

of whom an arranqement

in force under paragraph

(a) of sub-section

(1) of

section 21 of this Act is applicable:

f b ) a person who

holds offlce as a Chief, Police.

Stipendiary, Resldent	nr Special Magistrate of
a Territory:

....

'the parole period',

relation to a

person who

has been

released

from

prison

parole

pursuance of section	5	of this Act. means the
period that -

(a)

commences on

the day on which the person

released from prison; and

(b)

ends -

(i) in the case

a person imprisoned

f o r

life

- on

the day fixed by the parole

order

the day

on which the parole

expires: or

(ii) in any other case - on the day on which

the term

imprisonment to which that

person was sentenced expires,

or, if the parole order

In relation to the

person is revoked

or cancelled. on the date

the revocation or cancellation.

( 2 )

A reference in this Act, other than section

21. to the Governor-General shall be

read as a

7 .

reference to the Governor-General acting

with the

I	advice of the Attorney-General.

(3)

For the purposes of this

Act, a person

shall

deemed

have.- served a term

imprisonment -

when he is discharged from imprisonment: or

when he would, but for the fact

that

he is

serving another term

imprisonment. have

been discharged from imprisonment.

5. (1)

Subject to this

section,

the

Governor-General may,

m his discretion, by order

in writing direct that

a person, being

a person who

is serving a term of imprisonment for

an offence

against a law of the Commonwealth in respect

which

minimum term of imprisonment has been

fixed, be released from prison on parole

at a time

specified in the order, being

a time that is after

the	expiration	of	that	minimum	term	of
imprisonment.

( 2 )

....

...

( 4 )

A parole order -

(a) shall be

expressed

be subject to the

condltion that the person to

whom it relates

shall. during the parole period, be subject to

the supervision of

a parole officer appointed

in accordance

with the order and shall obey

all	reasonable directions of that officer:
and

(b) is subject

to such other conditions,

If any,

as are specified in the order.

( 5 )

The Governor Ppneral may, at any time ;efore

the expiration of the parole period, by order in

writing -

(b)	revoke the parole order.
....

(81 Where -

I -

(a) a

parole order in relation to

person is

! ,	revoked:	or
1 -

(b)	the person to whom a parole order relates has.

I '

during the parole period, failed to comply

with a condition of the parole order or there

are reasonable grounds for su3perting that he

has, during that period. failed to comply with

a condition of that order,

a	constable may, without	warrant.	arrest	the
per son.

( 9 )

Where

a constable arrests a

person in

pursuance of the last preceding sub-section, the constable shall, as soon as practicable. take the

person before a prescribed authority in the State or Territory in which the person is arrested.

6 .

If a constable

arrests a person

the

circumstances specified in paragraph (b) of sub-section ( 8 ) of the last preceding section, the prescrlbed authority shall, if he 1 s satisfied that the person has failed, without reasonable excuse.

to comply with

a condition of the parole order.

writing under

his hand, cancel the order.

7. (1) This section applles where

(a) a person has

been brought before a prescribed

authority in

pursuance of sub-section ( 9 ) of

section 5 of

this

Act

the

State

Territory

which

he was

imprisoned

immediately before being released from prison

in pursuance of a parole order:

and

(b)

the prescribed authority is satisfied that the parole order in relation to the person has

been

revoked

the

prescribed

authority

cancels the parole arder in relation

to the

person.

( 2 )

Where this section applies, the prescribed

authority shall issue

a warrant -

(a)

authorizing any constable to convey the person

to such prison in the State

or Territory as is

specified in the warrant: and

(b) directing

that

the

person,

having

been

conveyed to that prison in that State nr detained in prison in that State or Territory to undergo imprisonment for the part of the

9 .

term of imprisonment to which the parole order

relates that he has not served.

(1) Where a person has been brought before a prescribed authority in pursuance of sub-section

( 9 ) of section 5 of this Act, the

prescribed

authority may defer or adjourn the hearinu of the

matter and may

(a) by warrant from time to time

remand the person

to a prison,

lock-up

other

place

custody

there

kept

until

the

time

appointed for continuing the

hearing; or

(b) order

the

release

the

person

upon

his

entering into a

recognizance, with or without

sureties, conditioned for

his appearance at

the time and place appointed for continuinu

the hearing.

( 2 1

....

10. (1) Where -

(a) a warrant has been issued in respect

of a

person under section

7 or section S

of this

Act;

and

( b ) an pursuance of the next succeeding section,

appeal

instituted

the

person

a prescribed authority may. on the application of

the person, order the release of the person upon

his entering into

a recognizance, with or wlthout

sureties, conditioned for his reporting

in person

at the time

times and at the place

or places

specified in the recoqnizance.

Where

section is allowed, a recognizance under the last

preceding sub-section shall thereupon cease to have

effect.

an appeal under the nest succzedlnq

( 2 )

( 3 ) Where a

recognizance under sub-section (1)

this

section is in force in relation

to the

person. a

warrant issued in respect of the person

under section

7 or section 8 of this Act shall

not,

unless

the

person

breaks

a condition nf the

recognizance,

executed

or further

executed

before the appeal is disposed of.

I	10.
I.

....

12.

(1)

A prescribed authority exercising any

powers under this Act may take evidence on oath

affirmation and for that purpose may administer	an
oath or affirmation.

( 2 )

prescribed

authority

exercising

any

powers under this Act may summon

a person to appear

before him to give evidence and to produce such

documents and articles (if any) as are referred to

in the summons.

( 3 ) A summons under this section shall be served

in the same manner

as a

summons to a

witness to

appear before a court

of summary jurisdiction in

the State or Territory where the summons under this

section is issued.

13. (1)

A person who has been duly served with

a summons to appear before

a prescribed authority

shall not, without

reasonable

excuse,

fail

appear in obedience

to the summons.

14. Where a parole order In relatlon to

a person

revoked

or cancelled and

the person is taken

into custody in pursuance of this Act. the person

shall, durinq any period In which he is in custody

in pursuance of this Act, be deemed to be servinu

the part of the term of imprisonment that remained

to be served	at	the commencement of the parole
period.

...

17. (1) Where

a parole order is made in relation

he shall be deemed to be still under sentence

of imprisonment, and not to have served the

part of the term of imprisonment that remained

to a person -

tJ be served at the commencement of the parole

period,

until

the

parole

period

expires

without the parole order beinq revoked or

cancelled or until he is otherwise discharged

from that imprisonment> and

the

parole

period

expires

without

the

parole order being revoked or cancelled,

shall be deemed to have served the part of the

term

imprisonment

that remained

served at the

cornmencement of the parole

11.

period and to have been discharued from that

imprlsonment.

....

--19-.- The provisions of a law of a State or

Territory relating to the reduction

or remission of

sentences or minimum terms

of imprisonment apply to

a federal offender who

serving a sentence

imprisonment in a prison of that State or Territory

manner

as those

provlsions

apply

relatlon

to a State

offender

a Territory

.offender serving	a sentence of imprisonment in that
prison.

....

Other legislation referred to by counsel

indudes the Probation

and Parole Act,

1983 (N.S.W.) (assented to 31 December 1983).

"Parole order" is defined in

s.4(1) to mean "an order made under

sectlon

2 7 ( 2 ) or

2 9 ( 3 ) " .

Provision is made for such orders,

their duration, effect and circumstances under which the Parole Board constituted under that Act may revoke the Parole Order. It

is clear that "parole order" in the N.S.W. Statute

1s not that

which is referred to in the Act

5 .3 .

Section 41,

under the

heading "Effect

of revocation of parole order", provides -

"Notwithstanding section	3 9 ( 2 )	and	( 4 ) . where	a
prisoner -

(a)

after having been released under

parole

order, is returned to a prison;

(b)

is serving a period of imprisonment consistinu

of so

much of the term or.

if more than one,

of the terms of imprisonment

in respect

which the parole order was made

was not

served by the prisoner before beinu released

pursuant to the order: and

that, period

by reason of any

other sentence imposed

on the prisoner.

that period shall be reduced by the

interval of

time commencing with the day

on which the prisoner

12.

, I

was released pursuant to the order and concludinu

with -

(d) except as

provided by paragraph

(e), the day

on which the order

was revoked; or

(e) where. under section

38 or a determination

made under section

40. the order is required

to be treated

as having been revoked on

earlier day, that earlier day."

The Parole Order, omitting some formalities, read

"I, SIR NIMIAN MARTIN STEPHEN,

the

Governor-General

of the Commonwealth of Australia, acting with the advice of the Attorney-General and in pursuance of

section 5

of the Commonwealth Prisoners Act 1967,

HEREBY DIRECT that

DENNIS SAMUEL VELLA

an inmate of the Cessnock Corrective Centre, in the

State of New South Wales, (hereinafter referred

as 'the parolee'), who

is servlnu a term

of 9

years'

imprisonment,

commencinu

13 February

1978, which imposed upon him by the District Court

at Sydney on

3 March

1978, for being knowinqly

concerned in the importation into Australia of

prohibited imports (heroin). contrary to paragraph

233B(l)(d) of

the Customs Act 1901,

in respect of

which term a

non-parole period which expired

on 30

June 1982 had been fixed by the said Court,

RELEASED F R O M

PRISON on the

day, not being before

20 September 1982.

on which the Superintendent or

Officer-in-Charae

the

prison

which

the

parolee is detained on that

date. receives this

order, SUBJECT

TO THE FOLLOWING CONDITIONS, namely,

that the parolee shall:

(a) within forty-eight hours

of his rel-qse report

to the Officer-in-Charge, Probation and Parole

Service,

Hurstville

District

Office,

7th

Floor, i.A.C. House, 12-14 Ormond	Parade.
Hurstville, New South Wales;

(b)

from the day on which

is released from

prison until 12 February

1987,

or until this

order is sooner revoked

or cancelled -

(i) be of good behaviour and not violate any

law;

(ii) be subject to the supervision

such

person (hereinafter referred to

as 'his

parole officer') as is from time to time

appointed by the said Officer-in-Charge;

(iii) obey

all

reasonable

directions

relation to his supervision as are given

him

by his parole

officer,

including

directions as to the seeking

of such

counselling treatment or for his addiction to drugs as may be considered appropriate bp his parole officer;

(iv) reside

at an address and engage

emplo-ment	approved of by his parole
officer ;

(v) not

chanue

his

address

employment

without first obtaininu the permission

his parole officer

or, if that

is not

practicable, inform his parole officer

any

change

of address or

employment

withln

forty-eight

hours

after

such

change :

(vi) not unlawfully use, possess or sell any

substance that

is a druq or narcotic

preparation within the meaninu of the

Narcotic Drugs Act

1967;

(vii) not knowingly associate with any person

who	unlawfully uses, possesses or sells

any such substance;

(viii) not leave the

State

of New South Wales

for any other

State or

Territory of the

Commonwealth of

Australia

without

obtainins

the

prior permission of the

Director,

Probation and Parole Service.

Roden Cutler House,	24	Campbell Street,
Sydney;

(ix) comply

with every condition subject to

which the said Director may grant him

permission to leave the State

of New

South Wales

for

any

other

State

Territory of	the	Commonwealth	of
Australia;

( X )

not leave the Commonwealth

of Australia

without

the

prior

permission

of the

I	Attorney-General of the Commonwealth of Australia.

DATED this Slxth day

of September 1982."

I '.

14.

The instrument by which the Parole Order was revoked reads

"I, SIR NINIAN MARTIN STEPHEN, the Governor-General

of the Commonwealth of Australia, acting with the

advice of the

Attorney-General, in pursuance of

sub-section 5(5) of the Commonwealth Prisoners Act

1967, HEREBY

REVOKE the parole order....made on

September 1982 in respect of

DENNIS SAMUEL VELLA

GIVEN under my hand this eleventh day of December

1984.'l

Counsel for the applicant submitted the authority

of the

order

revocation

of the

Parole

Order

made

the

Governor-General was

now "spent". Alternatively,

he said that

whether or not that was correct the sentence

imprisonment

imposed on the applicant in

1978 had now been served

by virtue of

s.17(l)(a)

of the Act because the applicant had been discharged

from that sentence.

third submission was that there was no

other authority to arrest the applicant which could

be relled

upon by the Commonwealth,

i.e. there was not any other offence or

anything of that kind relevant to these proceedings. In relation

to the first submission

said that the arrest havina taken

place and the applicant then returned to custody. the authority given by the revocation order thus was spent. He referred to

Halsburv's Laws of Enuland, 4th ed. vol. 11, par. 120; Searches Case (1588) 74 E.R. 65: AtZornev-General for the Colonv of Honq

Kons v. Kwok-A-Sinq

(1873) L.R. 5 P.C.179. Relying particularly

on Kwok-A-Sinq he said that the

Habeas Corpus

Act there discussed

I .

enshrined the common law principle that

person cannot be

re-arrested on the authority of

one document whether or not it

15.

has been the subject of a

court decision so long as it has had

its effect.

He referred to Re Mackie

(1932) 59 C.C.C. 68.

agreed or conceded that the authorities were not of great weight

in relation to this particular case but from them there emerged	a
general principle, viz. that where a person is committed to

prison, he

1s committed to the custody of the Governor of the

prison: thereafter,

3 n the absence of any further court order,

the responsibility is on the

gaol authorities to calculate his

correct release date

and,

subject to any other order they may

receive,

release

him

the

time

they

calculate

to be

appropriate. He referred to the Prisons Act, 1952 (N.S.W.)

s.41.

submitted that the applicant had been released

from prlson

under the authority of

the person having his custody

on the basis

that he had no further term of imprisonment

serve: that the

Federal Police have no power

to determine that he

was wronuly

released,

that

being

a matter

for

the

Corrective

Services

Commission or the Governor

of the Prison.

He agreed that no doubt

Commonwealth leuislation could provide

overriding power to

tell the offender; but that was not what any Commonwealth legislation had

State

authorities

when

release

a Commonwealth

done.

submitted that the words in

s.17(l)(a) of the Act.

"until he is otherwise discharged", must be taken to relate to the case where the parole order had been revoked or cancelled,

the parolee returned

prison and afterwards discharged. He

submitted that the responsibility to make the calculation as to

when the sentence expired

- in which respect

he referred to

s.41(3) of

the Prisons Act

was upon the Corrective Services

16.

Commission of New South Wales.

In his submission the application

of the provisions of

5.41

of the Probation and Parole Act in

calculating the date of release of the applicant was correct; It

was

a law

of a state, viz. New South Wales. relating to the

reduction or remission referred to in 5.19 of the Act. He submitted, in effect, that as

sentence: therefore it was

law

a matter

policy there was good reason for adopting an

interpretation of

5.19

which would have the consequence that

state and federal prisoners in

New South Wales would be treated

equally.

In his submission, there is no common law or statutory

power to enable a constable to arrest a person who has committed no offence other than s . 5 ( 8 ) of the Act. He said, referrinu to

Murphv

Corrective Services Commission

New South Wales

(unreported; O'Brien C.J. of Cr.D., Supreme Court of

New South

Wales ;

December 1983).

that the decision concernlnq

the

release of

a prisoner in gaol was

a matter for the Corrective

Services Commission of

N.S.W.

Counsel for the respondent submitted that %he important

matter was that the arrest might take place wlthout any warrant

where the parole order had been revoked.

He referred to s . 5 ( 9 )

of the Act; the effect wheieof was that the arrestlng constable should take the person before the prescribed authority. On that background, he submitted, there was no basis €or a contention

that a revocation of a parole order was analogically similar to a

warrant. On the contrary,

he submitted, the whole scheme

of the

legislation precluded the necessity for any warrant; see in this

l/.

connection the closing words

s . 5 ( 8 ) .

Arrest, he said. had no

effect at all

the consequence and status

of the revocation

I .

1 8

order;

it continued to have

could

not

that

the

revocation

was

"spent". It

an effect afte@"the arrest Itself: this much

was clear from the succeeding provisions in the

Act. mereafter.

he submitted, the person arrested

had, in effect, the status of

"revoked parolee" which

he did not lose merely because arrested.

He referred to the procedures outlined in 5.7 of that Act, which provided the source of authority to enable the constable to

convey the parolee to a prison (s.7(2)(b)); the

warrant issued

by the prescribed authority also directed that the parolee

"undergo imprisonment" for the part of the term of imprisonment

to which the parole order related, i.e.

the portion no% already

served. The material which would be placed before the prescribed

authority, e.g.

of identification. of revocation of the parole

order, would then be followed by the issue

of a

warrant; that

warranc

would

authorise

the

conveyance

a gaol

and

the

detention of the person therein.

He referred to the proceedings

before the prescribed authority which might include, where there

was not time to deal with the matter immediately, interim orders

sending the parolee to prlson or releasing

him on conditions. In

his

submission,

once

the

parolee

was

brought

before

the

prescribed authority,

only

that

entity

would

determine

his

future.

He described these provisions as

a "code to deal wi%h

offenders whose parole was revoked and who had been arrested by a

constable". Section

1 2 of

the Act tended to confirm, he said,

"the ~udicial

nature of the

inquiry"

before

the

prescribed

authority.

submitted that by reason of

a person being a

---_-revoked parolee he could

be arrested and re-arrested so long as

he remained at large,

his

sentence not having expired. The Act,

he said, had not been able to operate or to

do its work;

would be

anomalous in those circumstances

say that no arrest

could now be made effectively to enable the provisions of the Act

to be implemented. He referred to Rex v. The Secretarv of State

for Home Affairs. Ex parte Budd E19423 2 X.B. 14 at pp.24-25. He

submitted that there was, on the applicant’s evidence. no basis

for confining him to prison on 17 January 1985. since he had not

been taken before the prescribed authority. He submitted that

there was nothing in the Act or consistent

with

its intention

precluding a

further arrest of

the appllcant; that this

wa5 a

reason for not granting the order sought restraining arrest.

He referred to the further argument which relied on the

fact that the applicant had been discharged

on 31 January 1985.

He submitted that properly interpreted

s.17 of the Act made it

clear that notwithstanding the making

the parole order the

prisoner was imprisonment even though not confined: that

still

deemed

to be under

the

sentence

he was deemed not

have served the unexpired term

of imprisonment remaininu

CO be

served at the commencement of the parole period.

The sentence.

he submitted, continued until the parolee was discharqed

by the

expiry

the parole

order, itself unrevoked. or some other

discharge.

19.

He submitted that

5.17

dealt not with the effect of a

discharge of sentence but with the effect of

parole on

sentence; (this would be consistent with a

marginal note).

The

expression "that imprisonment" in

s.17(l)(a) in

his submission

referred to the sentence of imprisonment in respect of	which the
person was paroled; one could envisage there could be other

sentences of imprisonment;

that

there

was

some other

sentence of imprisonment, concurrent or otherwlse, the discharge

would not operate as the discharge from

the other sentence. The

word "discharged", he submitted, should not be read

as synonymous

with "released". He submitted that just as s.17 was concerned with parole orders and not releases, it was concerned also with sentences of Imprisonment and not custody. He contrasted the use of the word "imprisonment" in s.17 with the use of "custody" in

S. 14.

He submitted. in effect, that "discharged" implled that

the sentence of imprisonment had ceased

to be operative and at an

end;	a mistaken release or a mistaken computation as to the date

upon which

person was due for release could not avail him.

He made

submissions as to whether the applicant had served his

sentence of imprisonment; in particular

he addressed argument as

to the applicability of the

N.S.W.

"street time" provisions. He

submitted that pursuant to

s.41(3)

of the Prisons

Act,

1952

(N.S.W.)

there had been enacted the Prisons Regulatiurls,

1968

( N . S . W . ) .

referred

Part

those

regulations,

commencing at Regulation 110.

As a result of Regulation No. 238

of 1983 amending

the

Prisons

Regulations,

1968 insertlnq

Regulation 11OA(7)(a)(i). the applicant became entitled to

. _

- .

. -

2 0 .

remission equivalent to one third

1680 days (this being the

period from 13 February 1978 to 20 September 1982). i.e.

560

days. He referred

the

Probation

and

Parole

Act,

1983

(N.S.W.) s.41.

This, so it was said, was the statutory basis for

the phenomenon of "street time". He submitted the section had

relevance to the present matter.

The

Probation and Parole Act

5.4

defined "parole order"

an order made under

S . 27 ( 2 ) or

s.29(3); whereas

here

the

parole

order

was

made

the

Governor-General.

He submitted that two pre-conditions to the

operation of the "street time" provision were, firstly,

a parole

order, pursuant to which a person is released, made under State

legislation; secondly, the prisoner must be serving a period of

imprisonment consistina of

so much

of the term as was not served

before he was released on parole. Further, he submitted, that

for the purposes of 5.19 of the Act it would be necessary to be

able to describe the Probation and Parole

Act including s.41 as

"provislons of a law of a State

...

relating to the reductlon or

remission of sentences or minimum terms of imprisonment

..." He

submitted that

5.41 was not such a provision but one whlch

related to the effect

the revocation of a State parole order.

Even if

it was a law

of a State relating to the reductlon or

remission of sentences.

1t applled by fbrce of

5.19 only

to a

Federal offender serving a sentence of

imprisonment in a prlson

of the State; it was only State provisions that apply

to persons

serving that were caught by

5.19; thus

Part XV of

the Prisons

Regulations were applicable because they provlaed for "prisons"

remissions, e.g.

industrial

remissions,

proqramme

remlssions,

,strike remlssions etc.; whereas

5.41 had nothing to do with an

offender in prison. He submitted that

a State prisoner could be

the beneficiary of the "indulgence" afforded by

s.41

without

being in prison; whereas

s.19 extended the benefit

of State

remission provlsions only to a Federal offender in prison.

(Underlining

mine,

emphasis

his).

In his

submission

the

inference that 5.41 was

a provlsion with relation to the "effect

of revocatlon of

parole order" (the marginal note) was supported

by s.41 of the Probation and Parole Act

bemg in an Act so named;

5.41

was not

a provision

with

respect to the reduction or

remisslon of sentences.

To hold otherwise, he said, would give

rise to an inconsistency between 5-41 of the Probation and Parole

&t(N.S.W.)

and the field covered by

55.14 and 17 of

the Act;

5.17 covered the same field

s.41 and to the extent of any

inconsistency one could not invoke s.19

to brina into operation

I	s.41 of the N.S.W. Act.

It is unnecessary to restate all counsel's arguments.

The first question which arises is whether having been arrested once, following the revocation on

11 December

1984 of

the Parole Order, thereafter returned

to prison and then released

"unconditionally"

the

authority

of the

revocatlon

has

been

"spent," so that no further arrest of the applicant could be made

pursuant to

s.5(8) of the Act.

Should the head sentence

have

expired, there would then

be no power extant to arrest; and thls

because a parole order (unrevoked) operates to control

or govern

22 .

the activities of the so-called parolee after release pursuant to

it and from that time until the expiration of the head sentence

or, e.g

such earlier time as the Parole Order itself sets out.

Paragraph

(b) of

the Parole Order here made such

a provision

(revocation).

So the unrevoked Order provided conditions which

the parolee (applicant) was obliged to observe until the expiry

of the head sentence. Then the Parole Order.

as may be inferred

from its wording in paragraph (b). would cease to have effect.

I do not overlook that 5 . 6 provides for cancellation of the parole order by a prescribed authority in the circumstances

set out.

This would appear to be another way before the time of

its expiration of putting an end to such	an	order. It	1s not
necessary to consider its operation here.

I do not accept that a s.5(5)(b) revocation of a parole

order is the equivalent

of a warrant.

The

Act does not require

the arresting constable to obtaln

warrant priorto arrest.

warrant would be in writing, would specify

offence wlth

Christie Viscount Simon at p.587: per Lord Simonds at

Leachinskv

C19473 4.C. 573 per

particulars

(cf.

p.592) and authorise

a named or designated person or office holder to apprehend and take a specified person into custody or before a Magistrate. But

s.5(8) operating itself like, as it were, a statutory warrant to

authorise arrest and the conveying of the parolee to the

prescribed authority does not requlre any warrant: though

doubt the arresting constable should inform the parolee

of the

. .-

- _,

. .

.. . .

. .

-. -

_ . .

. /

- .,-- - ~

.*c. r- 2-

_ .

._ I .

- . .

~ -

L .

. _.

-- -

- .-

\_. ... :--. .. _Zl_> -

1 .

.. .

_ _ _.

.___

_-__ - --a-- L

-L _-____-

_____ L_ - -.

- .. - - ._

___

_I_ -

__._

- - -

-__ - - -

- ---

23.

authority

for

the

arrest.

, The basis

upon

which

the

Governor-General may

revoke a parole order is not specified

5.5. Even if his action were examinable one assumes there must be a degree of discretion in the exercise

of his power under this

enabling provision. However, once revoked any subsequent action of arrest will not cause any diminution of the efficacy of

revocation which merely brings

an end to the parolee's permission

to be at large.

There could not be any exhaustion of the effect

accorded to it

by the legislature. It is inapt to speak of the

authority or effect of

revocatlon order as "spent". If

following arrest, the procedures in

5.7

are fulfilled then It

might be said the operation

of the subsequent or consequential

s .7(21

warrant

might

spent

upon

iaplementation,

not

the

revocatlon order.

The procedures available following revocation

here have not been implemented; the revocation order is far from

.being

"spent".

Revocation,

anyway, instruction; it merely terminated the operation and continuance

left

no positive

of the parole order

which had provided authority for release from

prison and suspension of custody sublect to the conditions it had

imposed.

There

no lonuer

remained

any

entitlement

the

applicant to remaln at large assuming the term

of the sentence

had not been completed.

Upon revccatlon and the parolee having

been taken "into custody in pursuance of this

Act" (5.141, the

parolee is deemed to be serving the part of

of the term of

Lxp.rlsomnent to which

s . 7 ( 2 ) (b) referred.

It was arqued, relying on

5.17 of the

Act,

that the

applicant had served his term of imprisonment when released from

prison

on 31 January 1985. Section 17 of

the

Act, upon

analysis, refers to the effect

of a parole order on sentence. It

ensures a

continuation of the sentence during the period

of the

parole order; or describes the effect

of an unrevoked one, Its

effect then is that

The parolee

will

deemed

still

under

the

sentence

until the parole period (the parole

order

not

having

been

revoked)

expires; or

until

he is discharged

otherwise

than by the expiry of the sentence

from that imprisonment.

"Discharged otherwise" refers

some act

of discharge which

interrupts the progress or continuation of

(m-revoked

un-cancelled)

parole

order:

so the

parolee

discharged

otherwise than by the expiry

the parole period. IL does not,

I suggest, have any bearing on the facts

of this case, where the

parole order informally, it could be said, to custody.

has been

revoked

and

the

parolee

returned,

The deeming provision of s.17(l)(a) treating the parolee

2 5 .

during the life of the parole order as being "still under

sentence of imprisonment, and not to have served the part

of the

term

imprisonment

that

remained

served

at the

commencement of

the parole period ...

without the parole order

being revoked" seems to be consistent or dovetail

in with 5.14

whereby upon return to custody

"in pursuance of this Act" (which,

suggest, envlsages

includes, inter alia, the procedures

outlined in 5.5 and s.7)

the former parolee is treated as

serving the part

of the term of imprisonment that remained

to be

served at the commencement of the parole period.

I do

not accept the proposition that the effect of the

Revocation Order is spent.

It,

follows that the procedures envisaged by

s . 5 ( 8 ) ,

subject to what appears below, may now be implemented. Assuminq an arrest, the constable is obliged to take the person arrested

before a authority, assisted

prescribed

authority

( 5 . 5 ( 9 ) ) .

Then the

prescribed

in the exercise of

his

functions by the

powers entrusted to him in

s s . 9 ,

and 13

the Act,

satisfied of the revocatlon, will, no doubt, exercise the s.7(2)

authority committed to him. That section is mandatory as to the

issue of a warrant authorizing as in s.7(2)(a), directing as In

s.7(2)(b). The prescribed authority, as I read s.7(2)(b), would

have to direct

that the applicant

"....undergo imprisonment for the part of the term of imprisonment to which the parole order* relates that he has not served".

. .

. ,..

. -

I ,

26.

(*i.e. the parole order referred to

in s.7(1

) l .

In so saying, I do

not seek to instruct the

prescribed authority

' _

as to his course -of action;

but

merely

continue

consideration whether

I ought, as is sought, issue

an injunction.

The instruction In s.7(2)(b) seems to me

to be cateuoric, leaving

the

prescribed

authority

no discretion;

though I am only

concerned to decide my

own course of action and not

- .

that of the

prescribed authority.

It may be that counsel's arguments

as to

the Commonwealth legislation covering the field have application

here - cf., (though not cited

to me) Greuorv Martin 11 A Crim.R.

93, a decision of	blells J. of	the	Supreme	Court	of	South
Australia.

deference to arguments offered

I shall express my

opinion on the applicabillty to the applicant

of "street time",

provided for in the Probation and Parole Act

s.41.

By 5-19 of the Act provisions of

a State law relating to

"reduction or remission of sentences or minimum

terns

imprisonment" shall apply to

a federal offender who is serving a

sentence

imprisonment

a prison

that

State.

The

applicant is

a federal offender.

I shall for present purposes

regard him as "...serving a sentence of imprisonment" as above.

So far

as it is relevant to say

s o , in my opinion

the section

should be read

speaking of "reduction of

or remisslon

I .

sentence"; and "reduction or remission" qualifies minimum terms

27.

imprisonment" (Wells

in Greqorv Martin (supra) seems to

have accepted this view).

The "minimum term of (the applicant's) imprisonment" as defined in the Act, 5 . 3 , was the period from 13 February 1978 to 30 June 1982 - some 4 years 4-l/-2 months. There is no provislon of a law of the State that has been drawn to attention or -1 have

been able to discover which relates to the "minimum term

imprisonment". The period

that

reduced

5.41 of

the

Frobatim a x l Farole Act is n o t described as or equivalent to the

"minimum term(s) of imprisonment". Any provision, i.e. for

"....reduction or remlssion of

...

minimum terms of

imprisonment.

. .

expected to appear where "Remission" is dealt with in Part XV of the Regulations, to which

I refer below.

niit$3lt

It is necessary then to discover what are the provisions

as to "reduction or remission of sentence"

in N.S.W. law.

Section 41

of the Prlsons Act under the headlng "Expiratlon of

sentence" states -

"(1) ....

( 2 ) ....

( 3 )

Prisoners shall be granted remission of sentences as prescribed by regulations under this Act.

Such regulations may include provislons for or

wlth respect to

(a) the

circumstances

in which and

the

conditions (including conditions

2 8 .

conduct, industry and behaviour) subject

to which such remissions may be granted:

(b) the

period

respect

which

such

remisslons may

be granted;

forfeiture

entitlement

remissions, by

reference to any periods

for which prisoners

have been confined to

cell pursuant to section 23A or 24 or to any matters or things prescribed or as the Commission may determine;

(d) the procedures and methods

of calculation

of remissions.

The determination as to

remission

granted under the foregoing provisions shall

be made by the

Commission and shall be final

and without appeal.

Part XV of the Prisons Regulations as amended to 1 July

1983

is headed "Remission" and is concerned with remission

sentences. Regulation

110 is not relevant for present purposes.

Under the heading "Ordinary remission", Regulation llOA, in

particular

Regulation

llOA(7), deals with entitlement

remissions and the amount of such remissions. Regulation llOB provides for special remissions and Regulation 111 is a further source of remissions (e.g. 2 days per month for a prisoner

carrying

out

training

programme,

excellence

conduct,

forfeiture of remission where confined to cell

f o r misconduct. or

escaping etc.). None of these Requlations

are concerned with

"street time". That was introduced by the Probation and Parole - Act (No. 194 of 1983 i.e. 18 years after 5.19 of the Act was

passed) 5.41.

It is,

I suggest, worth noting that the "street

time" provision was not included as

addltion to

Part-

Requlations. If

5-41 were a further remlssion provision that is

2 9 .

where one might

have expected it would have been Inserted.

Having regard to the form and substance

of s.41(3)

the Prisons Act worked out by Part XV of the Prison Regulations.

in particular Regulations e.g. llOA, llOB and 111. its heading

and the absence in s.41 of the Probation and Parole Act of any

words such as "remission" I consider the last mentioned 5.41 is

not one	of the "provisions" which	5.19 envisaged or picked	up
as:-

sentences or minimum terms of Imprisonment."

' I . . . .relating

reduction

remission

As was pointed out in argument, "parole order" as defined in

5.4

of the Probation and Parole Act is

an order made under

s . 2 7 ( 2 )

s.29(3) of that Act

- not under the Act.

I note that s.41 does

use the word "reduced"; though in respect of a period of imprisonment remaining following return to prison after having

been released under

a "parole order"

(i.e.

a N.S .W. parole

order). Section

refers to circumstances under which this

period of imprisonment may be reduced; whereas

5.19 of the Act

refers to

l'....

reduction....of sentences or minimum terms of

imprisonment	..."	-	the last phrase being defined	as set out
earlier.

Section 25 of

the

Probation

and

Parole

Act

does

contemplate

reduction

non-parole

period.

Regulations

pursuant

to that Act published on"'24 February

1984

included

Reg.18 which

appeared

under

the

heading

"Reduction

the

. .- . .

. 1

. -

> -

30.

non-parole period”. However. the non-parole period fixed when

the applicant was sentenced expired on

30 June 1982, i.e. before

the Probation and Parole Act was passed. Reverting again to

counsel’s arguments earlier referred

.to, the provisions

of the

Act, in

particular s.14, in their totality seem to me

to cover

the fleld relatinc

to the further

mprisonment of

the former

parolee; the operatlon of

s.41 of the Probation and Parole Act

appears to be inconsistent

with their direction. I do not imply

that following any return to custody, the applicant may not

become entitled to future or

further remissions.

In my opinion s.41 of the Probation and Parole

Act does

not apply to the applicant who therefore did not become entitled

to “street

time“.

If the prescribed authority took that view

that would be

a further reason supporting that any order

he made

need not take account of “street time“.

I refuse the application for an order

restraming the

respondent and members of the Australian Federal Police from

arresting the applicant and to make the declarations sought.

[1985] FCA 248

14 Jun 1985