Smith v Corrective Services Commission (NSW) [1980] HCA 49; (1980) 147 CLR 134 (5 December 1980)

HIGH COURT OF AUSTRALIA

SMITH v. CORRECTIVE SERVICES COMMISSION (N.S.W.) [1980] HCA 49; (1980) 147 CLR 134

Criminal Law

High Court of Australia
Stephen(1), Mason(1), Murphy(1), Aickin(1) and Wilson(1) JJ.

CATCHWORDS

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] HCA 49; (1980) 147 CLR 134 at pp 136-137.

HEARING

1980, October 10; December 5. 5:12:1980
APPEAL from the Supreme Court of New South Wales.

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 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 conditions (including conditions as

to conduct, industry and behaviour) subject to which such remissions may be granted;

(b) the period in respect of which such remissions may be granted;
(c) the forteiture of entitlement to 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 to be granted under the foregoing

provisions shall be made by the Commission and shall be final and without appeal."
Part XV of the Regulations is headed "Remission", and contains regs 110 to 116 inclusive. It is sufficient to confine our attention at this stage to part of reg. 110, which reads as follows:
"Subject to this Part, a convicted prisoner shall be entitled to remission in accordance with the following provisions: -
(a) A convicted prisoner who is serving a sentence period of one month or more, and who is not an habitual criminal, shall be entitled to a remission of one-quarter of the sentence period:
Provided that a convicted prisoner who had, before commencing to serve that sentence period, not been imprisoned, to serve one or more sentences, for a period of three months or more (whether or not that period of three months or more was reduced by any remission or other earlier release) shall be entitled to a remission of one-third of the sentence period.
In this paragraph, 'sentence period', in relation to a prisoner who is imprisoned for a period (not being a portion only of a period of imprisonment) during which he is to serve -

(i) only one sentence; or
(ii) more than one sentence, whether cumulatively or concurrently or both,

means that period without regard to any remission or other earlier release." (at p137)

4. Mr. Porter argued that s. 41 (3) of the Act gave to the applicant a statutory right to a remission of his sentence as prescribed by the regulations, and that the opening paragraph of reg. 110 (1) quantified it. He claimed that there is no provision which derogates from that entitlement in the case of a prisoner who has his parole revoked and is returned to prison to serve the unexpired portion of his term. (at p137)

5. However, the members who formed the majority in the Court of Appeal of the Supreme Court of New South Wales (Moffitt P. and Hope J.A.) answered the question against the applicant. They were led to that conclusion because of the construction which they placed on reg. 110. Their Honours construed the term "sentence period" in that regulation to mean an unbroken period of imprisonment. The "sentence period" that commenced when the applicant began to serve his sentence on 13 June 1968 came to an end on 14 March 1975 when he was released on parole. Any entitlement to remission which existed at that time was swallowed up by his earlier release. His return to prison on 20 October 1978 marked the commencement of a new "sentence period". It was not a portion of the original period of imprisonment, but had its origin in the power vested in the Parole Board by s. 6 (3) of the Parole of Prisoners Act. This being so, it did not fall within the exclusion contained in the parenthesis in the definition of "sentence period", and so the applicant was entitled to a remission under reg. 110 in respect of that unexpired portion. Such a result is consistent with the decision of Street J. (as he then was) in Cheetham v. McGeechan (1971) 2 NSWLR 222 , but the question under consideration in that case did not touch that portion of the sentence which was served prior to parole. In the present case, Street C.J. dissented from the decision of the majority. (at p138)

6. Before proceeding to expound what we believe to be the proper construction of the regulation, it is to be observed that if it were correct the decision of the Court of Appeal could produce some startling results. Any prisoner who is released on parole after serving a substantial part of his sentence, and who thereafter has his parole revoked will in effect have forfeited his reg. 110 remission for the imprisonment served before parole. This may not be unjust, or surprising, if it were clear that parole could not be revoked otherwise than for serious misconduct. But that is not so. The Parole Board appears to have a power to revoke parole which is not conditioned by any specific criteria (Parole of Prisoners Act, s. 6 (2B)). One can imagine that the intervention of circumstances touching a parolee which had not been anticipated at the time of his release and which in the view of the Board place the parolee in some jeopardy might reasonably lead it to revoke the parole order notwithstanding that the parolee has not been guilty of any misconduct at all. Yet if the Crown's argument is correct the consequence of such a well-intentioned but ill-fated endeavour to benefit a prisoner through the grant of parole is to deprive him of the general remission to which he was entitled in respect of the period of imprisonment served before his release on parole. In this particular case, the period of imprisonment served by the applicant prior to his release on parole represented an entitlement to remission under reg. 110 of 616 days and with the benefit of all the remissions which he could have expected to be granted he would have been facing release in 1976, had he not been granted parole. A prisoner has no right to refuse parole. (at p138)

7. It is also to be noted that the service of a sentence of imprisonment may be interrupted, not only by release pursuant to a parole order which is subsequently revoked, but by the escape of a prisoner. Yet in such a case the regulations are meticulous in their prescription of the effect of such a break in the serving of the sentence on the prisoner's entitlement to remissions. The material provisions are as follows:

"113. (1) . . .
(2) A prisoner who escapes from prison shall forfeit all his entitlement to

remission that has been granted in accordance with Regulation 110 or 111.

(3) . . .
114. The period from the escape of a prisoner from a prison to his

recapture, and such period from his recapture to his being sentenced pursuant to section 34 of the Act, or, as the case may be, any appeal therefrom, as the Comptroller-General determines, shall not, for the purpose of calculating his entitlement to remission in accordance with Regulation 110 or 111, be regarded as -
(a) a part of his sentence period referred to in paragraph (a) of Regulation 110;
(b) a part of his term of imprisonment referred to in paragraph (b) of that Regulation; or
(c) a period in respect of which he is entitled to remission in accordance with Regulation 111."
It is made quite clear that such a prisoner forfeits his entitlement to any remission under regs 110 and 111 in respect of the period of imprisonment served before the escape. Not only in the case of escape, but also in relation to other grounds of forfeiture of remission the regulations appear to be quite specific. (at p139)

8. Of course, these observations do not of themselves establish the applicant's case, but they indicate something of the context in which reg. 110 is found, and lead to an expectation that if, in the event of a revocation of parole, a prisoner cannot claim an entitlement to the remission prescribed by that regulation in respect of the period of his sentence that he has served before being released on parole then the law in question will point clearly and unmistakably to that conclusion. It will not be found by implication which results from the interpretation of an obscure or ambiguous provision. The expectation to which we refer is reinforced by the established principle of statutory interpretation requiring strict construction of a penal statute, or an Act which affects the personal liberty of the subject: Maxwell on Interpretation of Statutes, 12th ed. (1969), p. 239; Marcotte v. Deputy Attorney-General (Canada) (1974) 51 DLR (3d) 259, at p 264 ; Board of Fire Commissioners (N.S.W.) v. Ardouin [1961] HCA 71; (1961) 109 CLR 105, at p 116 ; Watson v. Marshall and Cade (1971) 124 CLR 621, at pp 629, 649 . (at p139)

9. The question, then, is as to the proper construction of reg. 110. The answer depends upon the meaning to be given to the term "sentence period". As we have said, the majority in the Court of Appeal considered it to have a meaning which is distinct from the concept of the sentence of imprisonment viewed as a whole. It was seen to refer to any period in which a sentence or sentences or part thereof is or are served without interruption. With all respect to their Honours, we think that such a view is mistaken. It appears to us that there is a simple explanation of the choice of the term "sentence period" in preference to the phrase "a sentence of imprisonment". It was to ensure that it extended to cover the total period of imprisonment to which the prisoner had been sentenced, whether or not it was made up of one sentence, or of a number of sentences, and whether in the latter event they were concurrent or cumulative sentences. Applying this meaning to the facts of the present case, the position is clear. From 13 June 1968 the applicant satisfied the description of "a convicted prisoner who is serving a sentence period of" twelve years, made up of five concurrent terms who therefore shall be entitled to a remission of one-quarter of that period. When on 20 October 1978 he was returned to prison to serve the unexpired portion of his term of imprisonment he again satisfied precisely the same description. It is, of course, essential to this construction that one is able to say that his return to prison in 1978 was in order that he might continue to serve the original five concurrent terms of twelve years which constituted the "sentence period". Having regard to the terms of s. 6 (3) of the Parole of Prisoners Act, which speaks of a warrant to "return him to prison to serve the unexpired portion of his term of imprisonment", it could not be argued that it was a new term of imprisonment which began at that time. Nor, in our view, did his return to prison mark the commencement of a new "sentence period". This construction, which accords with that adopted in dissent by Street C.J., seems to us to be entirely consistent with the operation of the other provisions of the Prisons Act and regulations in relation to remissions, and with the provisions of the Parole of Prisoners Act. (at p140)

10. The applicant is therefore entitled to the benefit of the remission in respect of the entire period of imprisonment which he has served, and hence his entitlement to immediate release. (at p140)

11. It is unnecessary for the purposes of this case to engage in an exhaustive discussion of the meaning of the third paragraph of reg. 110 (a), nor of the question where this decision leaves Cheetham v. McGeechan (1971) 2 NSWLR 222 . It suffices to say that in our opinion the paragraph emphasizes that it is the totality of the sentence or sentences of imprisonment that is or are being served which is to be regarded for the purpose of crediting the prisoner's entitlement to a remission under that particular regulation. (at p140)

12. It is for these reasons that the orders of 10 October 1980 were made. (at p141)

ORDER

Application for special leave to appeal granted

Appeal allowed with costs.

Order of the Supreme Court of New South Wales (Court of Appeal) in so far as it relates to reg. 110 of the Prisons Regulations 1968 be set aside and in lieu thereof declare that the appellant is entitled to remissions of sentence pursuant to the provisions of reg. 110 of the Prisons Regulations 1968, for the period commencing 13 June 1968 until 14 March 1975.