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

HIGH COURT OF AUSTRALIA

DAVID JOHN KELLEHER v. THE PAROLE BOARD OF NEW SOUTH WALES & ANOTHER [1984] HCA 77; (1984) 156 CLR 364

Criminal Law

High Court of Australia
Mason(1), Murphy(2), Wilson(3), Deane(4) and Dawson(5) JJ.

CATCHWORDS

Criminal Law - Sentence of imprisonment - Release on parole - Parole revoked - Remissions - Effect - Royal prerogative of mercy - Parole of Prisoners Act 1966 (N.S.W.), ss. 6, 9 - Probation and Parole Act 1983 (N.S.W.) - Office of Governor (N.S.W.) - Letters Patent and Instructions, 29 October 1900, cl. 9.

HEARING

1984, August 9; November 29. 29:11:1984
APPEAL from the Supreme Court of New South Wales.

DECISION

MASON J. I have had the advantage of reading the reasons for judgment prepared by Wilson J. and Deane J. I agree, for the reasons which they give, that the parole period fixed by the Parole Board under s.6 of the Parole of Prisoners Act 1966 (N.S.W.) could not exceed the unexpired portion of the nominal sentence.

2. This conclusion makes it necessary to examine the legal effect of the Royal Visit remissions which is the foundation of the appellant's principal argument. It has been commonly said that a remission of sentence granted in the exercise of the Royal prerogative of mercy cancels or reduces the amount of the sentence (Chitty, Prerogatives of the Crown (1820) p.96; Wade and Phillips, Constitutional Law (8th ed. 1970) p.322; Heuston, Essays on Constitutional Law (2nd ed. 1964) p.69; Smith, "The Prerogative of Mercy, The Power of Pardon and Criminal Justice" (1983) Public Law 398, at pp.424-425). And this seems to have been the view of the Supreme Court of Canada in Re Royal Prerogative of Mercy Upon Deportation Proceedings (1933) 2 DLR 348 when the Court, speaking through Duff C.J.C., said (at pp 349-350):

"On the other hand, there is the great authority
of Hawkins' Pleas of the Crown that the act of
clemency may be limited to pardoning the
'execution'. 'It hath been clearly adjudged,' it
is said (8th ed., vol.2, c.37, s.12, p.535), 'that
the King may, if he thinks fit, pardon the
execution, and no more'. In this view it would
appear that the effect (as regards the offence) of
the unconditional remission of the punishment, or
of a conditional remission where the condition has
been performed, is a question of intention; and it
is upon this assumption that the practice in Canada
has proceeded. A release from prison, pursuant to
a valid act of clemency, necessarily involves a
remission, total or partial, of the punishment
awarded, but we see no reason to think that the
assumption alluded to above on which the Canadian
practice has been based is not well grounded."
remission operated to cancel or reduce the sentence or operated merely to release the subject from the obligation to serve it in whole or in part in custody, without altering the term of the sentence, was a matter of intention. The Court was merely saying that the question whether the act of clemency operated to pardon the offence or the execution of the punishment was a matter of intention. The contrary view was taken by the Criminal Division of the Court of Appeal in Reg. v. Foster (1984) 2 All ER 697 where it was held that the Crown cannot, under the prerogative of mercy, remove a conviction but only pardon its effects. Re Royal Prerogative of Mercy was not referred to by the Court. However, that question does not arise in the present case.

3. There seems to be little doubt that a remission of sentence was ordinarily regarded as cancelling or reducing the sentence. In addition to the earlier citations see Gough v. Davies [1856] EngR 590; (1856) 2 K & J 623 (69 ER 931). In this respect I do not agree with the statement of Street C.J. in the Court of Appeal in this case that there is an absolutism about a pardon which does not inhere in a remission. Although, as will appear later, cl.IX of the Letters Patent Constituting the Office of Governor of the State of New South Wales dated 29 October 1900, as amended, and cl.IX of the Instructions to the Governor of the same date draw a distinction between a pardon and a remission, a remission may take effect as a conditional pardon. However, it should be noted that there is no authority which suggests that it can only take effect as a conditional pardon (Re Royal Prerogative of Mercy, at p.352). On the other hand there is no solid reason for thinking that the prerogative of mercy extends only to the grant of remissions of sentence which operate to cancel or reduce the sentence. It conforms to the notion that the Crown has a broad discretion to dispense clemency to a subject to say that the prerogative extends to a remission which releases the subject from the obligation to serve the sentence in whole or in part in custody, without altering the term of the sentence itself. Such a remission would not involve any element of commutation of the sentence - the substitution of one form of punishment for another - without the consent of the subject, this being a suggested restriction on the prerogative - see Ex parte Lawrence (1972) 3 SASR 361, at p 368; Brett, "Conditional Pardons and the Commutation of Death Sentences" (1957) 20 Modern Law Review 131, at pp.136-137; cf. Re Royal Prerogative of Mercy, at p 352.

4. Likewise, there is good reason for thinking that the exercise of the Crown's broad discretion to grant clemency might legitimately take the form of a remission operating to release the prisoner from the obligation to serve in custody, subject to conditions of the kind usually appropriate to the grant of parole. A remission of sentence so conditioned would not in my view amount to a substitution of one form of punishment for another so as to infringe the rule, if any, barring commutation of a sentence in the sense in which I have used that expression. Goldfarb and Singer in After Conviction (1973) at p.331 observe that in the United States:

"Conditional pardons, which may be revoked if the
conditions are violated, were the forerunners of
parole. Their use is now rare, their need having
been sharply reduced since parole became the
standard method of release from prison. A
conditional pardon contained the same restrictions
on the releasee's liberty as parole, although with
pardons the conditions might be tailored to
individual cases without regard to any applicable
statutory conditions required to be placed on
parolees."

5. Clause IX of the Letters Patent and of the Instructions delegated the exercise of the Royal prerogative of mercy, authorizing the Governor to:

"... grant to any offender convicted in any court
of the State ... a pardon, either free or subject
to lawful conditions, or any remission of the
sentence passed on such offender, or any respite of
the execution of such sentence for such periods as
the Governor thinks fit".

If the prerogative itself extends to the grant of a remission which merely releases the subject from the obligation to serve the whole or part of his sentence in custody, without invalidating the sentence, as I consider it does, the power delegated to the Governor extends to the grant of a remission of sentence which operates in the same way. Likewise, the power delegated to the Governor extends to the grant of a remission of sentence on conditions similar to those involved in a grant of parole.

6. On their true construction the Instruments granting the remissions do not operate so as to cancel or reduce the sentences. Wilson J. has pointed to the features in the Instruments which compel this conclusion, especially (a) the expression "additional remissions" which must be taken to mean remissions additional to those under s.41 of the Prisons Act 1952 (N.S.W.), as amended, which necessarily operate simply by way of releasing the prisoner from the obligation to serve the sentence or part of it in custody, and (b) condition 7 which is so expressed as to make the remissions operate to "advance the date of the prisoner's release".

7. Because the Royal Visit remissions were expressed to be additional to remissions under s.41, it may be safely concluded that the intention expressed in the Instruments was to grant additional remissions of the same kind and effect as those for which provision was made by virtue of the Prisons Act. Consequently the fixing of the parole period under s.6 of the Parole of Prisoners Act did not limit or affect in any manner the Royal prerogative of mercy contrary to s.9 of that Act.

8. In the result, I would dismiss the appeal.

MURPHY J. I agree with Mr Justice Deane and with the orders he proposes, and add only that, in accordance with traditional principles, any ambiguity in the legislation or the Instruments granting Royal Visit remissions should be resolved in favour of the liberty of the individual.

WILSON J. On 31 October 1973 the appellant was sentenced to imprisonment for a term of ten years to commence on 30 July 1973. He was admitted to parole in accordance with the provisions of the Parole of Prisoners Act 1966 (N.S.W.) as amended (the "Parole Act") on 21 December 1977. The parole order specified 29 July 1983 as the date on which period of parole would terminate. The order was revoked on 9 June 1983, just fifty-one days before the nominal sentence of ten years expired. On 11 June 1983 the appellant was returned to prison to serve the unexpired portion of his term of imprisonment less remissions.

2. The remissions to which the appellant was entitled at the time of his release on parole included remissions provided for by regulations made pursuant to s. 41 of the Prisons Act 1952 (N.S.W.) as amended (the "Prisons Act") and also a total remission of 205 days of the sentence by virtue of exercises of the Royal prerogative of mercy in recognition of visits to New South Wales of members of the Royal Family in 1973 and 1977. It is the effect, if any, of these prerogative remissions on the operation of the parole order that provides the issue in this appeal.

3. The proceedings were instituted by the appellant by way of summons in the Common Law Division of the Supreme Court of New South Wales and removed into the Court of Appeal. He sought declarations to the effect that the revocation of his parole in June 1983 was beyond power and void because by reason of the prerogative remissions his sentence had expired on 8 December 1982. The Court of Appeal (Street C.J., Priestley J.A. and Lee A-J.A.) unanimously refused to make any declarations and dismissed the summons.

4. The Parole Act has now been repealed by the Probation and Parole Act 1983 (N.S.W.) (the "1983 Act") but the repeal does not affect the determination of the case. In order to deal with the issues, it is necessary to refer to certain provisions of the former Act. Section 6 deals with parole orders. Subsection (2) empowers the Parole Board in the circumstances set out to direct the release of a prisoner on parole and continues:

"Any parole order shall subject to this Act be in
force for such period and be subject to such terms
and conditions as the Board may determine."

The question whether this provision empowers the Parole Board to fix a parole period which extends beyond the expiry of the nominal sentence was considered by the Court of Appeal in R v. Blucher (1981) 2 NSWLR 511. A majority of the Court answered the question in the negative. Mr. Blanch, counsel for the respondents, now advances an argument to the contrary, relying on the literal meaning of the words of the provision and the dissenting opinion of Roden J. in Blucher. With all respect, I feel no sympathy for the argument, but it is unnecessary to resolve the question one way or the other. It may be remarked that the 1983 Act puts the matter beyond doubt by adopting the stand taken by the majority in Blucher (cf. s. 31).

5. Section 6(2B) of the Parole Act empowers the Board to revoke a parole order and s. 6(3) provides:

"Where a parole order has been revoked after the
release of a prisoner from prison the Board may, by
warrant signed by any two members, authorise any
member of the police force to apprehend the person
to whom the parole order applies and to return him
to a prison to serve the unexpired portion of his
term of imprisonment (any period commencing on the
day on which he was released from prison and ending
on the day on which he was apprehended under such
warrant not to be taken into account), and such
warrant shall be sufficient authority for the
apprehension of such person and his return to and
retention in a prison."

Section 6(4), so far as material, provides that where a parole order is not revoked the parolee upon the expiration of the parole period shall

"be deemed to have served the term of imprisonment
in respect of which the parole order was made and
shall be wholly discharged therefrom."

Finally, s. 9 provides that:

"Nothing in this Act shall be so construed as to
limit or affect in any manner the Royal prerogative
of mercy."

6. The Governor of New South Wales is authorized to exercise the Royal prerogative of mercy so as to grant a remission to mark the occasion of a Royal Visit by cl. 9 of the Letters Patent constituting the office of Governor dated 29 October 1900. A copy of those Letters Patent is to be found in Lumb, Constitutions of the Australian States, 4th ed., Appendix IV, at p. 128. Clause 9, so far as presently material, reads as follows:

"9. Grant of Pardon; Remission of Sentences and
Fines ...
When any crime or offence has been committed within
the State against the laws of the State, or for
which the offender may be tried therein, the
Governor ... may grant to any offender convicted in
any court of the State, or before any judge, or
other magistrate of the State, within the State, a
pardon, either free or subject to lawful
conditions, or any remission of the sentence passed
on such offender, or any respite of the execution
of such sentence for such period as the Governor
thinks fit; ..."

In the Court of Appeal, Street C.J., with whose judgment the other members of the Court agreed, considered the terms of this clause and also the terms of cl. IX of the Instructions to the Governor of the same date in the context of a submission that the Royal Visit remissions amounted in substance to a pardon pro tanto. His Honour concluded that there is an absolutism about a pardon that does not inhere in a reprieve, a remission or a respite. The Court held that the remissions in question did not involve a vacation of the sentence itself but only a pro tanto vacation of the custodial restraints imposed by the sentence.

7. The Royal prerogative of mercy has a long history: see, for example, Blackstone, Commentaries on the Laws of England, 15th ed., vol. 4, pp. 397 ff; Chitty, Prerogatives of the Crown, (1820) pp. 88-102. While the wording of the Letters Patent distinguishes between a pardon and a remission of the sentence, I do not think that one can predicate a clear and consistent distinction between the two. With all respect, I think that Street C.J. may have been led a little astray by his first impressions of the terminology in expressing the view that there is necessarily an absolutism about a pardon that does not inhere in a remission. A pardon may be free or conditional. It may leave the judgment formally unreversed. Indeed, it has recently been decided in England that the Crown prerogative cannot go so far as to expunge the conviction itself: Reg. v. Foster (1984) 2 All ER 679. On the other hand, a remission has been described as a pardon: Jowitt's Dictionary of English Law, 2nd ed., p 1540; cf. also pp. 1310-1311, 1411. Of course, much more could be said but it would serve only to obscure the truth which is of fundamental importance to this case. That truth is that, however it be described, the scope and effect of an exercise of the Royal prerogative of mercy, at least so far as the consequences attaching to a conviction are concerned, falls to be determined by the intention of the grantor. In Re Royal Prerogative of Mercy upon Deportation Proceedings (1933) 2 DLR 348 the Supreme Court of Canada in the course of an advisory opinion alluded to the question of intention at pp. 349-350 as follows:

"... there is the great authority of Hawkins' Pleas
of the Crown that the act of clemency may be
limited to pardoning the 'execution'. 'It hath
been clearly adjudged,' it is said (8th ed.,
vol. 2, c. 37, s. 12, p. 535), 'that the King may,
if he think fit, pardon the execution, and no
more,'. In this view it would appear that the
effect (as regards the offence) of the
unconditional remission of the punishment, or of a
conditional remission where the condition has been
performed, is a question of intention; and it is
upon this assumption that the practice in Canada
has proceeded. A release from prison, pursuant to
a valid act of clemency, necessarily involves a
remission, total or partial, of the punishment
awarded, but we see no reason to think that the
assumption alluded to above on which the Canadian
practice has been based is not well grounded."

Later in its judgment, the Court cites with approval Dicey's description of the nature of the prerogative as being

"both historically and as a matter of actual fact
nothing else than the residue of discretionary or
arbitrary authority, which at any given time is
legally left in the hands of the Crown."
(at p. 351).

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.

9. I turn now to the central submission urged by counsel for the appellant. It is put in two ways. In the first place, the submission is that the immediate effect of the grant of a remission in respect of a Royal Visit is to shorten the head sentence, that is the nominal term of imprisonment, with the result that after allowing for 205 days Royal Visit remissions the appellant was no longer liable to have his parole order revoked in June 1983. Alternatively, it is said that the operation of the Act must not limit or affect in any manner the Royal prerogative of mercy (s. 9, Parole Act) and that in some way which is not explained the revocation of the parole order offended that injunction. Bearing in mind what I have said about the importance of intention in assessing the effect of an exercise of the Royal prerogative, these submissions fall to be evaluated in the light of the instruments granting the remissions in question. For all practical purposes, the two instruments are in identical terms, the substance of which is as follows:

"To mark the occasion of the visit of Her Majesty
Queen Elizabeth II to New South Wales, I recommend
that the following additional remissions be granted
to prisoners who will be undergoing sentences on
(date), in accordance with the following scale and
subject to the conditions endorsed hereunder:

SCALE:

1 Day for each calendar month of sentence
or for each part of a month where the
aggregate sentence is not an exact number
of calendar months, provided that no
prisoner shall receive a remission
greater than four months by virtue of this
approval.

CONDITIONS:

1. The release of prisoners affected by this
approval shall not become operative before
20th October, 1973.

2. A prisoner who is sentenced to confinement to
cell for a breach committed after
19th October, 1973, during the sentence being
served on that day shall forfeit 7 days of
such extra remission for each 1 day or part
thereof of confinement to cell awarded under
the provisions of Section 23A and 24 of the
Prisons Act as amended.

3. A prisoner who is convicted prior to
19th October, 1973, and who is in custody as
an appellant on that day shall be eligible to
receive the remission if his appeal be
dismissed and he complies with the other
conditions.

4. A prisoner who is sentenced after
19th October, 1973, whose sentence is ordered
to run from a date prior to 19th October,
1973, shall be eligible to receive the
remission if he complies with the other
conditions.

5. If a prisoner is serving a sentence on
19th October, 1973, and subsequently received
sentences of further imprisonment, he shall be
eligible for remission only in respect of the
sentence or sentences being undergone at
19th October, 1973.

6. Maintenance confinees shall be regarded as
prisoners serving sentences and shall be
granted a remission of one day for each
30 days of the period of commitment.

7. The remission shall operate in all cases so as
to advance the date of the prisoner's release
by the period of remission."

Each instrument, although expressed in terms of a recommendation from the appropriate Minister, carried the approval of the Governor, verified by his signature.

10. The intention behind each of these exercises of clemency is readily apparent. First, what is to be granted are "additional remissions". The appellant concedes that this cannot be read as confined to remissions which are additional to other Royal Visit remissions. In each case, the remission is to be added on to any other remissions from whatever source that may be earned by the prisoner. The judgment of Street C.J. which is under appeal identifies the possible sources of other remissions. The principal source, of course, is the regulations made under s. 41 of the Prisons Act but mention is made also of ss. 461 and 462 of the Crimes Act 1900 (N.S.W.) as amended. The remissions provided for by the latter Act may be disregarded. There might also be remissions granted by way of the Royal prerogative of mercy for reasons other than Royal Visits. I think it must be taken as established by the decision of this Court in Smith v. Corrective Services Commission that remissions granted under the power conferred by s. 41 of the Prisons Act do not have the effect of interfering with the nominal sentence. When that case was in the Court of Appeal ((1980) 2 N.S.W.L.R. 171), Hope J.A. at p. 189 discussed the point specifically in terms which did not attract any criticism in this Court. Support for the proposition is also to be found in the operation of s. 41(4), to which I have already referred. See also Green v. Corrective Services Commission of New South Wales (1982) 1 NSWLR 327; Husson.

11. Secondly, the remission is granted only to prisoners who will actually be undergoing sentences in prison on the favoured date. This finds emphasis in condition 3 with its stress on custody. Hence a convicted person on bail pending appeal is not eligible to receive the remission. Nor is a person on parole. Whether or not a person on parole is properly to be described as a prisoner (the Parole Act describes him as a "person") and whether or not in a particular context the restraints which may be imposed upon a parolee may be likened to custody, it would be a strange use of language to describe a parolee as either a prisoner or person in custody. Section 6(2) describes the effect of a parole order when it authorizes the Parole Board to direct that the prisoner "be released from prison on parole". A convicted offender who is released on probation is subject to much the same kind of supervision as a parolee but it is quite inappropriate to speak of a probationer as subject to a custodial sentence.

12. Thirdly, condition 2 provides for forfeiture of seven days of the "extra remission" for every day that a prisoner is sentenced to confinement to cell for a breach of prison discipline.

13. Finally, condition 7 describes the remission as operating so as to "advance the date of the prisoner's release". The release referred to must be the prisoner's actual release from prison.

14. In my opinion, the terms of the Royal Grant make it plain that what is being granted in recognition of a Royal Visit is an additional or extra remission of precisely the same nature and effect as the remissions which are provided for by s. 41 of the Prisons Act and which were the subject of the Court's consideration in Smith v. Corrective Services Commission. There is no interference with the term of imprisonment to which the offender was sentenced by a court. The effect of the remission is that at the appropriate time the date of the prisoner's release from prison will be advanced by the period of additional remission.

15. This conclusion supplies the answer to the appellant's central submission, however it be put. The remission does not affect the length of the term of imprisonment to which the prisoner was sentenced. This term, the nominal term or head sentence, remains unaltered throughout the relevant history of the prisoner and serves as the benchmark by reference to which, subject to any forfeiture, the amount of remissions are to be determined.

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.

17. It only remains to add, having regard to Mr. McHugh's stress on the possible injustice which may result from the operation of the Parole Act if a parole order is revoked for reasons other than misconduct of the parolee at a time when the parole period has almost expired, that it is not for this Court to examine the merits of the revocation order that was made in this case. It was certainly most unfortunate for the appellant to come so near to the end of a long parole period and then to have his parole revoked; on the other hand, there would appear to have been cause for the Parole Board's action. The new Act would seem to have gone at least some way towards meeting the theoretical objections advanced by counsel for the appellant.

18. I would dismiss the appeal.

DEANE J. This appeal is brought by special leave from a decision of the New South Wales Court of Appeal (Street C.J., Priestley J.A. and Lee A-J.A.) refusing declaratory relief which had been sought by the present appellant in proceedings instituted in the Common Law Division of the Supreme Court. Those proceedings had been removed, by order made in the Common Law Division, into the Court of Appeal. The declaratory relief which the appellant seeks is intended to reflect his claim that, at the time when a Parole Board purported to order that he be returned "to a prison to serve the unexpired portion of his term of imprisonment", his term of imprisonment had either expired or was deemed to have been served in full.

2. The Parole of Prisoners Act 1966 (N.S.W.) was repealed as from February, 1984 and replaced by the Probation and Parole Act 1983 (N.S.W.) ("the new Act"). The repealed Act ("the Act") provided (s.6(2)) that a "parole order" would be "in force for such period ... as the Board may determine". On 18 November 1977, the Board constituted under the Act ("the Board") made the relevant parole order in respect of the present appellant who was then serving a term of imprisonment of ten years from 30 July 1973. In the parole order, the Board purported to determine that the appellant's parole period should commence on the date of his release on parole and terminate on 29 July 1983, that being the expiry of the nominal term of imprisonment to which he had been sentenced. In fixing that parole period, the Board made no allowance for remissions to which the appellant was then presumptively entitled. Those remissions consisted of ordinary remissions under s.41 of the Prisons Act 1952 (N.S.W.) and special additional remissions granted in exercise of the Royal prerogative of mercy to mark two visits of the Queen to New South Wales. The remissions pursuant to the Royal prerogative to which the appellant had become entitled had initially totalled 240 days. It is common ground that 35 days of that total had been forfeited leaving a balance of 205 days of Royal prerogative remissions.

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.

4. As the matter has been argued in this Court, the primary question which emerges is whether the Board exceeded its authority when it purported to fix a parole period corresponding with the balance of the nominal term of imprisonment to which the appellant had been sentenced without making any allowance in respect of the remaining 205 days of Royal Visit remissions. If the maximum "parole period" was a period corresponding to the balance of the original nominal sentence of ten years less those 205 days, it would appear to be common ground that the appellant's parole period should be treated as reduced to that maximum period and as having already expired when, on 9 June 1983, the Board purported to revoke his release on parole. It would follow that the appellant was to be deemed to have served the whole of the nominal term of imprisonment by reason of the provisions of s.6(4) of the Act. That sub-section provided that, subject to irrelevant exceptions, the person to whom an unrevoked "parole order applies shall upon the expiration of the parole period be deemed to have served the term of imprisonment in respect of which the parole order was made and shall be wholly discharged therefrom". It has not been suggested on behalf of any party that, if the Parole Board exceeded its authority in determining the "parole period", the whole of the parole order was vitiated.

5. There was no relevant distinction between the character or terms of the two Royal Visit remissions to which the appellant became entitled in the present case. Each remission was of general application in that it applied to any prisoners who satisfied specified "conditions". Each was of one day per calendar month of sentence (or part thereof). Each took the form of an instrument over the hand of the Governor. Each contained a condition (No. 2) providing for forfeiture of seven days of the remitted time for each day or part thereof of confinement to cell ordered under the Prisons Act for an offence against prison discipline. Each provided (Condition 7) that the remission would "operate in all cases so as to advance the date of the prisoner's release by the period of remission".

6. In Reg. v. Blucher (1981) 2 NSWLR 511 it was held by the New South Wales Court of Criminal Appeal that the maximum parole period which could be determined by the Parole Board under s.6(2) of the Act was a period equal to the balance of the nominal term of imprisonment to which a prisoner had been sentenced without regard to the effect of remissions to which he or she had become entitled under the Prisons Act and Regulations thereunder. It was submitted on behalf of the present respondents that Blucher was unduly restrictive of the discretion of the Parole Board and that the Board had, on a proper construction of s.6, been free to fix a parole period of any duration it thought fit regardless of when the head sentence would expire. I am unpersuaded by that submission. In my view, the conclusion of the Court of Criminal Appeal that the parole period could not exceed the unexpired term of the nominal sentence was correct. It accorded both with the general scheme of the Act and with common sense. It also accords with the approach subsequently adopted by the New South Wales Parliament when, in the new Act, it provided (s.31) that a parole order made by the new Board as a consequence of the specification of a non-parole period should, unless earlier revoked or rescinded, be in force for an "interval of time ... concluding" with the "expiration" of the relevant term or terms of imprisonment. The decision in Blucher should be accepted at least to the extent that it established that, under the Act, the parole period determined by the Board could not extend to a time after the expiry of the nominal sentence or sentences.

7. The Court of Criminal Appeal in Blucher was not required to consider the effect, if any, of a remission or remissions in exercise of the Royal prerogative of mercy upon the maximum parole period which the Parole Board could determine. It held that ordinary remissions under the Prisons Act had no effect upon that maximum period. Again, it would seem that its decision in that regard was adopted by the New South Wales Parliament in the new Act where "term of imprisonment" is expressly defined (s.4(1)) by reference to a "term for which the person is sentenced to imprisonment by a court". It was submitted on behalf of the present appellant that Blucher was mistaken to the extent that it failed to limit the maximum parole period to the term of imprisonment imposed less the remissions under the Prisons Act which were involved in that case. As I tentatively see the matter, I see little force in that submission. It is, however, unnecessary that I form a firm view on the point since, for reasons which shall appear, I have come to the conclusion that the appellant is entitled to succeed regardless of whether the maximum parole period which the Board was entitled to fix was affected by the remissions under the Prisons Act.

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.

9. As has been said, the argument in this Court covered new ground. In particular, there emerged an independent submission based on s.9 of the Act which would appear not to have been advanced in the Court of Appeal. That submission is that the express provision of s.9 of the Act precluded s.6 of the Act from being so construed as to permit the inclusion of the period in respect of which the appellant was presumptively entitled to Royal prerogative remissions within the parole period which the Board was authorized to determine.

10. Section 9 of the Act provided:

"Nothing in this Act shall be so construed as to
limit or affect in any manner the Royal prerogative
of mercy".

The operation of the section is to override the other provisions of the Act to the extent that they would otherwise be given the proscribed construction. The words "limit or affect in any manner the Royal prerogative of mercy" are sufficiently wide to include, in what must be avoided in the construction of other provisions, any confinement of the existence or content of that prerogative or of the effect of its exercise. Any provision of the Act which would, in the absence of s.9, operate to limit or affect the existence, content, exercise or effect of the exercise of the Royal prerogative of mercy must be construed or read back to the extent necessary to avoid that operation.

11. As Street C.J. pointed out in the Court of Appeal, the operation of each of the remissions under the Royal prerogative of mercy was to vacate "the liability to custody" during the period remitted and to release the appellant from "the custodial restraints imposed by the sentence" during that period. The benefit of the relief from the restraint of custody could be forfeited, in whole or in part, by confinement to cell as punishment for an offence against prison discipline. Subject to such possible forfeiture however, it was complete. The operation of the remissions was not, if and when they came to be enjoyed, to place the appellant in some half-way house between prison and freedom during the remitted period. It was to free him completely during that period from the punishment to which he had been sentenced.

12. Release on parole under the Act involved, and was plainly intended to involve, restrictions of personal freedom over and above the restraints imposed upon citizens generally by the law (cf. 67A Corpus Juris Secundum, "Pardon and Parole", p.54: "parole is a form of custody"). Thus, s.6(2) of the Act provided that a parole order should be subject to such terms and conditions as the Board might determine including terms and conditions requiring the person to whom the parole order applies "to subject himself to the supervision of a parole officer during the period specified in the parole order". The terms and conditions to which the Board subjected the parole order in favour of the appellant appear to have been standard ones in that they were printed upon what appears to have been a standard form. Apart from a condition requiring that the appellant should be of good behaviour and not violate the law, they require the appellant to "subject himself to the supervision and guidance of a parole officer" and to "carry out" that parole officer's "instructions". The appellant was required to "report to a parole officer or other person nominated by a parole officer, in the manner and at the times directed...". In addition to these general requirements, the appellant was subjected to a number of more specific restraints during the parole period. He was required to "enter into employment arranged or agreed upon by the parole officer" and to "notify the parole officer of any intention to change his employment...". He was also required to "reside at an address arranged or agreed upon by the parole officer" and to "notify the parole officer of any intention to change his address...". He was forbidden to "associate with any persons specified by the parole officer" or to "frequent or visit any place or district designated by the parole officer".

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.

14. The appeal should be allowed. The orders of the Court of Appeal should be set aside and, in lieu thereof, it should be declared that the decision of the Parole Board constituted under the Parole of Prisoners Act 1966 (N.S.W.) made on or about 9 June 1983 to revoke the parole order made in respect of the plaintiff on or about 18 November 1977 and to issue a warrant for the appellant's apprehension and return to custody was ultra vires and void. The respondents should be ordered to pay the appellant's costs both in this Court and in the Court of Appeal (including the costs of proceedings in the Common Law Division of the Supreme Court).

DAWSON J. I agree with the reasons for judgement of Wilson J. and there is nothing I can usefully add.

ORDER

Appeal dismissed.