Bailey v Kelsey [1959] HCA 16

H.C. or A. Criminal Law—Fugitive offenders—Provision for return of offender to part of domi- —

1959. we

MELBOURNE, Mar. 10, 11.

Sypney, Mar. 25.

week C.J., iernan, Kitto, Taylor and Windeyer JJ,

HIGH COURT

[HIGH COURT OF AUSTRALIA.]

BAILEY APPELLANT; — APPLICANT, ;

AND 4

KELSEY RESPONDEN?. — RESPONDENT, :

ON APPEAL FROM THE SUPREME COURT OF THE 3

NORTHERN TERRITORY.

nions where alleged offence committed—Where punishable in that part with imprisonment with hard labour for a term of twelve months or more—Confinement — in a prison combined with labour by whatever name called deemed to be imprison: — ment with hard labour—Whether applicable to charge of false pretences—False — pretences punishable with imprisonment for a term not exceeding five years— Provision by Prison Rules that every prisoner engage in useful work etc.—Fugi- tive Offenders Act 1881 (Imp.) (44 & 45 Vict. c. 69), ss. 5, 9—Larceny Act 1916 (Imp.) (6 & 7 Geo. V., c. 50), 8. 32 (1)—Criminal Justice Act 1948 (Imp.)(I1é 12 Geo. VI.,¢. 58), ss. 1, 52 (1)—Prison Rules 1949 (U.K.) (No. 1073 of 1949), — rr. 56, 57, 58.

Section 9 of the Fugitive Offenders Act 1881 (Imp.) provides that Pt. Ishall _ apply to certain named offences and to every offence which is for the time . being punishable in the part of Her Majesty's dominions in which it was com- _ mitted by imprisonment with hard labour for a term of twelve months or — more, or by any greater punishment. The section then proceeds "and for — the purposes of this section rigorous imprisonment, and any confinement in 5 prison combined with labour, by whatever name it is called, shall be deemed to be imprisonment with hard labour". By s. 32 (1) of the Larceny Act 1916 (Imp.) persons convicted of the offence of false pretences are liable to penal servitude for any term not exceeding five years. Section 1 (1) of the Criminal — Justice Act 1948 (Imp.) provides that no person shall be sentenced by a court to penal servitude ; and every enactment conferring power on a court to pass a sentence of penal servitude in any case shall be construed as conferring power — to pass a sentence of imprisonment for a term not exceeding the maximum — term of penal servitude for which a sentence could have been passed in that case immediately before the commencement of the Act. Section 52 (1) pre vides that the Secretary of State may make rules for the regulation and 2 Management of prisons etc. and for the classification, treatment, employment, o discipline and control of persons required to be detained therein. By shes