Flynn v The King [1949] HCA 38

High Court of Australia Latham C.J. Rich, Dixon and McTiernan JJ. Flynn v The King [1949] HCA 38

ORDER Application refused.

The following judgments were delivered:—

Latham C.J.

This is an application for special leave to appeal from a judgment of the Court of Criminal Appeal. The applicant is Stanley Thomas Flynn, who was sentenced to imprisonment for life for manslaughter in the year 1935. The applicant claims that he has a right to a reduction of his sentence by virtue of certain Prison Regulations. The Prison Regulations as they were promulgated in 1923 applied to him in 1935 and up to the time of the repeal of those regulations in 1940. He contends that under those 1923 regulations a life sentence was in effect reduced to a sentence of twenty years and was further made subject to a marks system whereby by good conduct a prisoner could earn a reduction of his sentence. In fact the marks earned by the prisoner were calculated by the prison authorities and, if he had a right to be released upon the basis that the sentence was a twenty-year sentence subject to reduction in accordance with the marks system, he would have been entitled to be released in March of this year.

Section 287 of the Criminal Code W.A. provides that the punishment for manslaughter shall be imprisonment for life. Regulation 155 (a) of the Prison Regulations 1923 is in the following terms:—"For the purpose of determining the time at which under the prison regulations the prisoner may be released a life sentence or a death sentence commuted to one of life" [these latter words were omitted by a subsequent amendment] "shall be deemed to be a period of twenty years, subject to reduction under the marks system. This regulation will not involve a limitation of but will be an addition to the right of a prisoner to petition under existing regulations." Regulation 155 (b) contains provisions for reports as to the conduct, mental and physical condition of all such prisoners at periods of five, ten and fifteen years. That provision fits in perfectly well with the provision that a life sentence thereafter is to be deemed to be a sentence of a period of twenty years. The terms of reg. 155 (a) are that a prisoner "may be released." It introduces the provision that a life sentence shall be deemed to be a period of twenty years subject to reduction under the marks system. I quote the initial words of reg. 155 (a)—"For the purpose of determining the time at which under the prison regulations the prisoner may be released." Regulation 140 of the 1923 regulations provides for the marks system. It provides that prisoners are entitled to earn marks towards remission of sentence. In par. (i) it is provided—"To determine a sentence, the following method will be employed:—Reduce sentence to days, multiply by six (6) for number of marks to be earned" and further arithmetical calculations are prescribed. The application of the marks system in determining the length of imprisonment therefore depends upon the initial act of reducing a sentence to days—that is the basis of the calculation which par. (i) requires. It is obviously impossible to reduce a sentence for life to days, as the period of no man's life can be determined in advance of death. Accordingly, the marks system as prescribed by reg. 140 can be applied to a life sentence only if there is some such provision as that contained in reg. 155 (a), which provides a fixed period of imprisonment in substitution for life. Regulation 155 existed in the 1923 regulations, but when in 1940 the regulations were repealed reg. 155 was not re-enacted.