New South Wales Consolidated Acts

PRISONERS (INTERSTATE TRANSFER) ACT 1982 - SECT 28

28 Provisions relating to translated sentences

(1) Where under a law of a participating State there has been fixed by a court in respect of a translated sentence a minimum term of imprisonment (being a shorter term than the translated sentence), during which minimum term the person subject to the sentence is not eligible to be released on parole, then, except as otherwise provided in this Act, that minimum term shall be deemed likewise to have been fixed by the corresponding court of New South Wales.

(2) Where a translated sentence or a minimum term deemed under subsection (1) to have been fixed by a corresponding court of New South Wales:

(a) is varied or quashed on a review by or appeal to a court of the participating State where the sentence or minimum term was imposed or fixed, the sentence or minimum term shall be deemed to have been varied to the same extent, or to have been quashed, by a corresponding court of New South Wales, or

(b) otherwise is varied or ceases to have effect as a result of action taken by any person or authority in that participating State, the sentence shall be deemed to have been varied to the same extent, or to have ceased to have effect, as a result of action taken by an appropriate person or authority in New South Wales.

(3) Nothing in this Act operates to permit in New South Wales any appeal against or review of any conviction, judgment, sentence or minimum term made, imposed or fixed in relation to a person by a court of a participating State.

(4) Where a translated sentence is an indeterminate sentence requiring that the person who is the subject of the sentence be detained during the pleasure of Her Majesty or during the pleasure of the Governor of the participating State in which the sentence was imposed, the person shall be detained during the Governor’s pleasure.

(5) The Governor:

(a) may exercise the royal prerogative of mercy in favour of a person who is subject to a translated sentence as if the person were:

(i) an offender convicted in a court of New South Wales, or

(ii) an offender convicted within New South Wales before a judge or magistrate of New South Wales, and

(b) in exercising that prerogative, may give effect to any indication given by the Governor of the participating State in which the sentence of imprisonment was imposed upon that person as to what the Governor of the participating State may have done had the person not been transferred to New South Wales.

(6) A person who is subject to a translated sentence:

(a) shall be deemed to have served in New South Wales such period of the translated sentence as, up to the time of the person’s transfer to New South Wales, the person had served in respect of that sentence in a participating State (including any period deemed by the provision of an interstate law that corresponds to this paragraph to have been served in a participating State and any period spent in custody while being transferred to a prison in New South Wales), and

(b) shall, subject to subsection (7), be deemed to be entitled to any remission of the person’s translated sentence for which, up to the time of the person’s transfer to New South Wales, the person was eligible in respect of that sentence of imprisonment in the participating State (including any remission of sentence deemed by an interstate law to have been earned in a participating State).

(7) Any remission of a translated sentence:

(a) for which the person who is subject to the sentence was eligible up to the time of the person’s transfer to New South Wales, and

(b) which is attributable to a part of the sentence not served or not to be served in the participating State from which the person was transferred,

shall not be taken into account for the purposes of subsection (6) (b).

(8) Subsection (5) does not apply in relation to a conviction or transferred sentence referred to in section 24 (2) (a) or (b) of the Transfer of Prisoners Act 1983 of the Commonwealth, but nothing in this subsection shall be construed as preventing the Queen or the Governor from exercising the royal prerogative of mercy as referred to in section 24 (2) of that Act.