Par CATCHWORDS Federal offender serving sentence in N.S.W. 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 served sentence - "reduction or remission of sentences or minimum terms of imprisonment" - applicability of N.S.W. "street time" provisions to federal offenders. Judiciary 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.) s.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 FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G44 of 1985 ) GENERAL DIVISTON ) BETWEEN DENNIS SAMUEL VELLA Applicant COMMISSIONER OF POLICE Respondent MINUTE OF OPDER JUDGE MAKING ORDER: McGregor J. DATE ORDER MADE: : 14 June 1985 WHERE MADE : Sydney THE COURT ORDERS THAT: The application is dismissed. Note Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA } ,] NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G44 of 1985 GENERAL DIVISION ) BETWEEN - DENNIS SAMUEL VELLA Applicant COMMISSIONER OF POLICE Pespondent McGregor J. Date: 14 June 1985 REASONS FOR JUDGMENT By application dated 28 February 1985 DENNIS SAMUEL VELLA {applicant) sought the following declarations and order - "Lh. 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 District Court at Svdney on 3 March 1978 for an offence against the Customs Act 1901 (Cth) s.233B(1)(d). 2. An order restraining the Respondent and all members of the Australian Police Force from arresting the Applicant, holding him in custody and delivering him to any prison in relation to the conviction of [sic] sentence imposed on him by the District Court at Svdnevy on 3 March 1978 for an offence against the Customs Act 1901 (Cth) s.233B(1)(d). 3. A declaration that the sentence imposed on Chim] by the District Court at Svdney on 3 March 1978 expired on 31 January 1985." ey eee on ee te ee er me en ee ee eee By Notice of Motion dated 4 March 1985 fhe applicant sought interlocutory relief in the terms of para.(2) above. In both the Application and the Notice of Mation the COMMISSIONER OF POLICE (the Commissioner) is named as respondent. On 7 March 1985 Ronald Alwyn Grey, Commissioner of the Australian Federal Police. entered a Notice of Conditional Appearance. The facts of this matter are not in dispute. The applicant at the District Court, Sydnev, on 3 March 1978 was convicted of an offence against s.233B(1)(d) of the Customs Act 1901 which, shortly put, 1s the offence of being knowingly concerned in the importation into Australia of prohibited imports (in this instance, heroin). On 3 March 1978 the applicant was sentenced toa term of 9 years' imprisonment to date from 13 February 1978 with a non-parole period expiring on 30 June 1982. Pursuant to the sentence the applicant was conveyed to and became an unmate of prisons including the Cessnock Corrective Centre. On 6 September 1982 Sir Ninian Martin Stephen, Governor-General of the Commonwealth of Australia, acting with the advice of the Attorney-General and in pursuance of s.5 of the Commonwealth Prisoners Act 1967 ('the Act) directed that the applicant be released subject to certain conditions from prison ona dav not being before 20 September 1982. On 19 September 1982 the applicant was released to parole. On 11 December 1984 the Governor-General, acting with ee ene ne en oe re ee ae _ ee ee en ee ae ae ee ee ee ree ee ee ee a é + ' "tt ' > t ' the advice of the Attorney-General pursuant to s.5(5)} of the Act, revoked the Parole Order. Thereafter, on 17 January 1985 the applicant was arrested and taken to the Central Industrial Prison at Malabar, though without first being taken before a prescribed authority as defined in the Act s.3. On or about 30 January 1985 Paul Stephen Cruickshank, Second Officer in charade of the General Office, Long Bav Complex ef Prisons at Malabar, calculated the expected 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 entitled in respect of the periods he had remained in custody or had been on parole. One such discount he applied was in respect of what has been referred to as "street time", i.e. the periad during which a prisoner is on parole, On 31 January 1985 the applicant was released from custody at the Central Industrial Prison, William Foster Dickens. the Solicitor for the applicant, stated inan affidavit (dated 29 Februarv 1985) that he was informed by the applicant and helieved that shortly before his release the applicant had a conversation with the Deputy Superintendent (not named) of the Central Industrial Prison to the following effect - DEPUTY SUPERINTENDENT: "You are ta be released now: it is instant release." APPLICANT: "Is this full time release, or am I subject ta conditions?" See a a el . : - a "te to be DEPUTY SUPERINTENDENT: "You will be released unconditionally; there 1s no requirement of reporting to a parole officer or anvone." In the same affidavit Mr. Dickens stated that he had had a conversation with an officer of the Department of the Attorney-General in Canberra who said words to the following effect - "Dennis Vella should not have been released on February 3. He still has 496 davs of his sentence to serve. The Australian Federal Police have been given the reveacation of his licence and will re-arrest him on the authoritv of that document. The document is being or has been taken from Long Bay Gaol and has been given to the Australian Federal Police in Sydney." In the affidavit there is also set out a statement attributed to the applicant's parole officer ta the effect that the applicant's parole order was revoked on 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. According to that affidavit orders set out in the application are sought on the following grounds ("he" refers to the applicant) - "€a) he was not in breach of condition (iv) or anv other condition of his parole order dated 6 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 or cancelled in accordance with the provisions of the Commonwealth Prisoners Act, 1967. (ec) his arrest on 17 January 1985 was made without lawful authority. (d) the constable who conveved him to prison on 17 January 1985 did so without lawful authority, (e) his imprisonment from 17 January 1985 to 31 January 1985 was without lawful authority. (f) the sentence imposed upon him by the District Court at Svdney on 3 March 1978 expired on or about 31 January 1985. (q) 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." on 7 March 1985 counsel then appearing for the respondent stated that it was proposed to arrest the applicant, take him before the prescribed authority and seek an order under s5.7(2) of the Act to convey him to prison. These proceedings seek to prevent these activities. Legislation referred to by counsel included the Judiciary Act 1903 s.39B - "(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought 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 wet out term of imprisonment to which a person has been sentenced by a court that is fixed by the court as the period during which the person is not eligible to be released on parole; 'parole order' means an order 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' mé@ans - (a) a person who holds office as a Chief, Police. Stipendiary, Resident or Special Magistrate of a State and in respect of whom an arrangement in force under paragraph (a) of sub-section (1) of section 21 of this Act is applicable: or (b) a person who holds office as a Chief, Police. Stipendiary, Resident or Special Magistrate of a Territory; 'the parole period', in relation to a person who has been released from prison on parole in pursuance of section 5 of this Act. means the period that - (a) commences on the day on which the person 1s released from prison; and (b) ends - (i) in the case of a person imprisoned for life - on the day fixed by the parole order as the day on which the parole expires; or (ii) in any other case - on the dav on which the term of 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 of the revocation or cancellation. (2) A reference in this Act, other than section 21, to the Governor-General shall be read as a reference to the Governor-General acting with the advice of the Attorney-General. (3) For the purposes of this Act, a person shall he deemed to have-served a term of imprisonment - (a) when he is discharged from imprisonment: or (b) when he would, but for the fact that he is serving another term of imprisonment, have been discharged from imprisonment. ee ee 5.1) Subject to this section, the Governor-General may, in 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 of which a 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) wee (4) A parole order - {a) shall be expressed to be subject to the condition 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 obev 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 General may, at any time Lefore the expiration of the parole period, by order in writing - (a) oo... (b) revoke the parole order. onen (a) a parole order in relation to a person is revoked; or (b) the person to whom a parole order relates has, during the parole period, failed to comply with a condition of the parole order or there are reasonable grounds for suspecting that he has, during that period. failed to comply with a condition of that order, a constable may, without warrant. arrest the person. (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 in the circumstances specified in paragraph (b) of sub-section (8) of the last preceding section, the prescribed authority shall, if he 1s satisfied that the person has failed, without reasonable excuse, to comply with a condition of the parole order, by writing under his hand, cancel the order. 7. (1) This section applies where - (a) a person has been brought before a prescribed authority in pursuance of sub-section (9) of section 5 of this Act in the State or Territory in 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 or 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 fo such prison in the State or Territorv as is specified in the warrant: and (b) directing that the person, having been conveved to that prison in that State or Territory in accordance with the warrant, be detained in prison in that State or Territorv to undergo imprisonment for the part of the a0 term of imprisonment to which the parole order relates that he has not served. 9, (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 hearing of the matter and may - (a) by warrant from time to time remand the person to a prison, lock-up or other place of custody there to be kept until the time appointed for continuing the hearing; or {b) order the release of the person upon his entering into a recognizance, with or without sureties, conditioned for his appearance at the time and place appointed for continuing the hearing. 10. (1) Where ~- (a) a warrant has been issued in respect of a person under section 7 or section 8 of this Act; and (b) an appeal is instituted by the person in pursuance of the next succeeding section, a prescribed authority may, on the application of the person, order the release of the person upon his entering into a recognizance, with or without sureties, conditioned for his reporting in person at the time or times and at the place or places specified in the recoqnizance. (2) Where an appeal under the next succeeding section is allowed, a recognizance under the last preceding sub-section shall thereupon cease to have effect. (3) Where a recognizance under sub-section (1) of 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 of the recognizance, be executed or further executed before the appeal is disposed of. en er i re a en ee ee ee ee eens 10. 12. (21) A prescribed authority exercising any powers under this Act may take evidence on oath or affirmation and for that purpose may administer an oath or affirmation. (2) A 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 ta 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 dulv served with a summons to appear before a prescribed authority shall not, without reasonable excuse, fail to appear in obedience to the summons. (2), (3) ...- 14. Where a parole order in relation to a person is revoked or cancelled and the person is taken into custody in pursuance of this Act. the person shall, during any period in which he is in custody in pursuance of this Act, be deemed to be serving the part of the term of imprisonment that remained to be served at the commencement of the parole period. see 17. (1) Where a parole order is made in relation to a person - (a) 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 be served at the commencement of the parole period, until the parole period expires without the parole order being revoked or cancelled or until he is otherwise discharged from that imprisonment; and (b) if the parole period expires without the parole order being revoked or cancelled, he shall be deemed to have served the part of the term of imprisonment that remained to be served at the commencement of the parole 11. period and to have been discharged from that imprisonment. -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 is serving a sentence of imprisonment in a prison of that State or Territory in like manner as those provisions apply in relation to a State offender or a Territory offender serving a sentence of imprisonment in that prison. Other legislation referred to by counsel includes 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 section 27(2) or 29(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 s.3. Section 41, under the heading "Effect of revocation of parole order", provides - "Notwithstanding section 39(2) and (4), where a prisoner - (a) after having been released under a parole order, is returned to a prison; (b) is serving a period of imprisonment consisting of so much of the term or, if more than one. of the terms of imprisonment in respect of which the parole order was made as was not served by the prisoner before being released pursuant to the order; and (c) is not serving that period by reason of anv other sentence imposed on the prisoner, that period shall be reduced by the interval of time commencing with the day on which the prisoner we as Aa ee ee ee Ce ee A ee eens 12. was released pursuant to the order and concluding 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 an earlier day, that earlier day." The Parole Order, omitting some formalities, read - "T, SIR NINIAN 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 ta as 'the parolee'), who is serving a term of 9 years' imprisonment, commencing on 13 February 1978, which imposed upon him by the District Court at Sydney on 3 March 1978, for being knowingly concerned in the importation into Australia of prohibited imports (heroin), contrary to paragraph 233B(1)(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, BE RELEASED FROM PRISON on the day, not being before 20 September 1982, on which the Superintendent or Officer~in-Charge of the prison at which the parolee is detained on that date. receives this order, SUBJECT TQ THE FOLLOWING CONDITIONS, namely, that the parolee shall: (a) within forty-eight hours of his release report to the Officer-in-Charge, Probation and Parole Service, Hurstville District Office, 7th Floor, 3.A.C. House, 12~14 Ormond Parade, Hurstville, New South Wales; (b) from the day on which he is released from prison until 12 February 1987, or until this order is sooner revoked or cancelled - (1) be of good behaviour and not violate anv law: (ii) be subject to the supervision of such ry - - - -- wut awe La 7 13. person (hereinafter referred to as (iii) obey all ota reasonable directions . 'his parole officer') as is from time to time appointed by the said Officer-in-Charge; in relation to his supervision as are given him by his parole officer, directions as to the seeking counselling or treatment including ef such for his addiction to drugs as may be considered appropriate by his parole officer; (iv) reside at an address and employment approved of by his officer; (vw) not change his address or his parole officer or, if that engage parole in employment without first obtaining the permission of is not practicable, inform his parole officer of employment any change of address or within forty-eight hours after change; (vi) not unlawfully use, possess or substance that is adruq or -~ preparation within the meaning of Narcotic Drugs Act 1967; such sell anv narcotic the _ (vii) not knowingly associate with any person who unlawfully uses, possesses any such substance; or sells (viii) not leave the State of New South Wales for any other State or Territory of the without the Director, Probation and Parole Service. Roden Cutler House, 24 Campbell Street, Commonwealth of Australia obtaining the prior permission of 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 or Territory of the Commonwealth of Australia; (x) not leave the Commonwealth of Australia the Attorney-General of the Commonwealth of without the prior permission Australia. DATED this Sixth day of September 1982." Oe we men ese me meme ee - sae of re ree Oa 14, The instrument by which the Parole Order was revoked reads - "T, STR 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 6 September 1982 in respect of DENNIS SAMUEL VELLA GIVEN under my hand this eleventh day of December 1984," Counsel for the applicant submitted the authority of the order of revocation of the Parole Order made by the Governor-General was now "spent". Alternatively, he said that whether or not that was correct the sentence of imprisonment imposed on the applicant in 1978 had now been served by virtue of s.17(1){a) of the Act because the applicant had been discharged from that sentence. A third submission was that there was no other authority to arrest the applicant which could be relied 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 he said that the arrest having taken place and the applicant then returned to custody, the authority given by the revocation order thus was spent. He referred to Halsbury's Laws of Engiand, 4th ed. vol. 11, par. 120; Searches Case (1588) 74 E.R. 65; Attorney-General for the Colony of Hong Kong v. Kwok-A-Sing (1873) L.R. 5 P.C.179. Relying particularly on Kwok-A-Sing he said that the Habeas Corpus Act there discussed enshrined the common law principle that a 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. He 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, "in the absence of any further court order, the responsibility is on the gaol authorities to calculate his correct release date and, subject to anv other order they may receive, to release him at the time they calculate to be appropriate. He referred to the Prisons Act, 1952 (N.S.W.) 5.41. He submitted that the applicant had been released from prison under the authority of the person having his custody on the basis that he had no further term of imprisonment to serve: that the Federal Police have no power to determine that he was wrongly released, that being a matter for the Corrective Services Commission or the Governor of the Prison. He agreed that no doubt Commonwealth legislation could provide an overriding power to tell the State authorities when to release a Commonwealth offender; but that was not what any Commonwealth legislation had done. He submitted that the words in s.17(1)(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 to 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 s.4l1 of the Probation and Parole Act in calculating the date of release of the applicant was correct; 1t was ailaw of a state, viz. New South Wales, relating to the reduction or remission of sentence; therefore it was a law referred to in s.19 of the Act. He submitted, in effect, that as a matter of policy there was qood reason for adopting an interpretation of s.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, referrina to Murphy ov. Corrective Services Commission of New South Wales (unreported; O'Brien C.J. of Cr.D., Supreme Court of New South Wales; 8 December 1983), that the decision concerning 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 the important matter was that the arrest might take place without any warrant where the parole order had been revoked. He referred to s.5(9) of the Act; the effect whereof was that the arresting constable should take the person before the prescribed authority. On that background, he submitted, there was no basis for 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 leqislation precluded the necessity for any warrant; see in this - ne 7 Te ae - ~- -o -* a tl oe . j - SIR * - ni i _ . _ ny ee ee: a ee et ee ee ee ee ee 17. connection the closing words of s.5(8). Arrest, he said. had no effect at all on the consequence and status of the revocation order; it could not be that the revocation was "spent", It continued to have an effect aftér the arrest itself: this much was clear from the succeeding provisions in the Act. Thereafter. he submitted, the person arrested had, in effect, the status of a "revoked parolee" which he did not lose merely because arrested. He referred to the procedures outlined in s.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 not alreadv served. The mater1al 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 warrant would authorise the conveyance to 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 prison 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 with offenders whose parole was revoked and who had been arrested by a constable", Section 12 of the Act tended to confirm, he said, "the judicial nature of the inquiry" before the prescribed - a whet meee ee ee ee = a ane 18. authority. He submitted that by reason of a person being a -... revoked parolee he could be arrested and reé-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; it would be anomalous in those circumstances to 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 £19423 2 K.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 applicant; that this was 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 35.17 of the Act made it Clear that notwithstanding the making of the parole order the prisoner was still deemed to be under the sentence of imprisonment even though not confined: that he was deemed not to have served the unexpired term of imprisonment remaining to be served at the commencement of the parole period. The sentence. he submitted, continued until the parolee was discharged by the expiry of the parole order, itself umrevoked, or some other discharge. mm ees eit eter ~ mo ra ee eee ee eee - He submitted that s.17 dealt not with the effect of a discharge of sentence but with the effect of a parole on a sentence; (this would be consistent with a marginal note). The expression "that imprisonment" in s.17(1)(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; so that if there was some ather sentence of imprisonment, concurrent or otherwise, 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" implied 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 a 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 arqument 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 Regulations, 1968 (N.S.W.). He referred to Part XV of those regulations, commencing at Regulation 110. As a result of Requlation No. 238 of 1983 amending the Prisons Regulations, 1968 inserting Regulation I110A(7)(a)(i), the applicant became entitled to a ae we ee em me me SoA tee a ee ee OE ek -+ 20. remission equivalent to one third of 1680 days (this being the period from 13 February 1978 to 20 September 1982), i.e. 560 days. He referred to the Probation and Parale 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 no relevance to the present matter. The Probation and Parole Act s.4 defined "parole order" as an order made under s.27(2) or s.29(3); whereas here the parole order was made by 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 consisting of so much of the term as was not served before he was released on parole. Further, he submitted, that for the purposes of s.19 of the Act it would be necessary to he able to describe the Probation and Parole Act including s.41 as "provisions of a law of a State...relating to the reduction or remission of sentences or minimum terms of imprisonment..." He submitted that s.4l1 was not such a provision but one which related to the effect of the revocation of a State parole order. Even if it was a law of a State relating to the reduction or remission of sentences, 1t applied by furce of s.19 only toa Federal offender serving a sentence of imprisonment in a prison of the State; it was only State provisions that apply to persons serving that were caught by s.19; thus Part XV of the Prisons Reguiations were applicable because they provided for "prisons" remissions, e.g. industrial remissions, programme remissions, 21. strike remissions etc.; whereas s.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 5.19 extended the benefit of State remission provisions only to a Federal offender in prison. (Underlining is mine, emphasis his). In his submission the inference that s.41 was a provision with relation to the "effect of revocation of parole order" (the marginal note) was supported by s.41 of the Probation and Parole Act being in an Act so named; s.41 was not a provision with respect to the reduction or remission of sentences. To hold otherwise, he said, would give vise to an inconsistency between s.4l1 of the Probation and Parole Act WW.S.W.) and the field covered by ss.14 and 17 of the Act; s.17 covered the same field as s.41 and to the extent of any inconsistency one could not invoke s.19 to bring into operation s.4]1 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 revocation 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 this 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 fhe head sentence or, @.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 s.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 is 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 obtain a warrant priorto arrest. A Warrant would be in writing, would specify an offence with particulars (cf. Christie v. Leachinsky [19471 A.C. 573 per Viscount Simon at p.587;: per Lord Simonds at 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 require any warrant; though no doubt the arresting constable should inform the parolee of the 23. authority for the arrest. + The basis upon which the Governor-General may revoke a parole order is not specified in s.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 a revocation order as "Spent". If, following arrest, the procedures in s.7 are fulfilled then it might be said the operation of the subsequent or consequential s.7(2) warrant might be spent upon implementation, not the revocation order. The procedures available following revocation here have not been implemented; the revocation order is far from 'being "spent". Revocation, anyway, left no positive instruction; it merely terminated the operation and continuance of the parole order which had provided authority for release from prison and suspension of custody subject to the conditions it had imposed. There no longer remained any entitlement in the applicant to remain at large assuming the term of the sentence had not been completed. Upon revgeation and the parolee having been taken "into custody in pursuance of this Act" (5.14), the parolee is deemed to he serving the part of of the term of aprisonment to which s.7(2)(b) referred. It was argued, relying on s.17 of the Act, that the t ' 24. 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 be deemed to be 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 to some act of discharge which interrupts the progress or continuation of a (un-revoked or un-cancelled) parole order; so the parolee is discharged otherwise than by the expiry of the parole period. It does not, I suggest, have any bearing on the facts of this case, where the parole order has been revoked and the parolee returned, informally, it could be said, to custody. The deeming provision of s.17(1)(a) treating the parolee 25. during the life of the parole order as being "still under sentence of imprisonment, and not to have served the part of the term of imprisonment that remained to be served at the commencement of the parole period...without the parole order being revoked" seems to be consistent or dovetail in with s.14 whereby upon return to custody "in pursuance of this Act" (which, I suggest, envisages or includes, inter alia, the procedures outlined in s.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. Assuming an arrest, the constable is obliged to take the person arrested before a prescribed authority (s5.5(9)). Then the prescribed authority, assisted in the exercise of his functions by the powers entrusted to him inss.9, 12 and 13 of the Act, if satisfied of the revocation, 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". 26. (xi,e. the parole order referred to in s.7(1)). In so saying, I do not seek to instruct the prescribed authority as to his course of action; but merely to continue my consideration whether I ought, as is sought, issue an injunction. The instruction in s.7(2)(b) seems to me to be categoric, 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) Gregory Martin 11 A Crim.R. 93, a decision of Wells 7. of the Supreme Court of South Australia. In deference to arguments offered I shall express my opinion on the applicability to the applicant of "street time", provided for in the Probation and Parole Act s.41. By s.19 of the Act provisions of a State law relating to ""yeduction or remission of sentences or minimum terms of imprisonment" shall apply to a federal offender who is serving a sentence of imprisonment in a prison of 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 so, in my opinion the section should be read as speaking of "reduction of or remission of sentence"; and "reduction or remission" qualifies minimum terms 27. of imprisonment" (Wells J. in Gregory Martin (supra) seems to have accepted this view). The "minimum term of (the applicant's) imprisonment" as defined in the Act, s.3, was the period from 13 February 1978 to 30 dune 1982 - some 4 years 4-1/2 months. There is no provision of a law of the State that has been drawn to attention or T have been able to discover which relates to the "minimum term of imprisonment". The period that is reduced by s.41 of the Probation and Parole Act {a not described as or equivalent to the "ninimum term(s) of imprisonment". Any provision, i.e. for - ",,..,reduction or remission of...minimum terms of imprisonment..." might ba ezpected to appear where "Remission" is dealt with in i) Part XV of the Regulations, to which I refer below. 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 Prisons Act under the heading "Expiration of sentence" states - "(1) oa. (2) wae (3) Prisoners shail 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 28. 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 forfeiture 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 Prisons Requlations as amended to 1 July 1983 is headed "Remission" and is concerned with remission of sentences. Regulation 110 is not relevant for present purposes. Under the heading "Ordinary remission", Regulation L10A, in particular Regulation i110A(7), deals with entitlement to remissions and the amount of such remissions. Regulation 110B provides for special remissions and Regulation 111 is a further source of remissions (e.g. 2 days per month for a prisoner carrying out a training programme, éxcellence in conduct, forfeiture of remission where confined to cell for misconduct, or escaping etc.). None of these Reaqulations are concerned with "street time". That was introduced by the Probation and Parole Act (No. 194 of 1983 1.6. 18 years after s.19 of the Act was passed) s.41. It is, I suggest, worth noting that the "street time" provision was not included as an addition to Part XV Regulations. If s.4l1 were a further remission provision that is 29. where one might have expected it would have been inserted. Having regard to the form and substance of s.41(3) of the Prisons Act worked out by Part XV of the Prison Regulations, in particular Regulations e.g. 110A, L10B 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 s.41 is not one of the "provisions" which s.19 envisaged or picked up asi- - "....relating to reduction or remission of sentences or minimum terms of imprisonment." As was pointed out in argument, "parole order" as defined in s.4 of the Probation and Parole Act is an order made under s.27(2) or 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. aN.S.W. parole order). Section 41 refers to circumstances under which this period of imprisonment may be reduced; whereas s.19 of the Act refers to ".,...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 of a non-parole period. Regulations pursuant to that Act published on 24 February 1984 included Reg.18 which appeared under the heading "Reduction of the 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 field relating to the further imprisonment of the former parolee; the operation 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 restraining the respondent and members of the Australian Federal Police from arresting the applicant and to make the declarations sought. I cernfy that this and the twenty nae (21) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice McGregor, Whe Cons Associate Dated: /4 Aone 725 ae ee mn pen A en re mE RA pe RT ke ER RR ee ee ee