Opinion Number. 728

Subject

PARDONING POWER CONCURRENT SENTENCES FOR FEDERAL AND STATE OFFENCES: PARDONING POWERS OF GOVERNOR-GENERAL AND STATE GOVERNORS

Author
Date
Client
The Prime Minister

The following communication has been received by His Excellency the Governor-General from His Excellency the Governor of New South Wales:

  1. I have received a communication from my Ministers recommending the extension of the prerogative of pardon in the case of A.B.CD. who was convicted on 1st December 1915 of stealing letters sent by post and stealing a camera, and ordered to undergo a concurrent sentence of twelve months' hard labour in respect of the latter conviction.
  2. There does not appear to be any constitutional objection to my complying with the advice of my Ministers without affecting the other concurrent sentence for a crime against a Federal law. In regard to the latter, the exercise of the prerogative of mercy rests solely with Your Excellency.
  3. Nevertheless the exercise of the prerogative in regard to the crime which is not covered by Federal legislation may raise side issues. The case is therefore brought to the notice of Your Excellency in case you may wish to express views before I take action.
  4. Reference may also be made to correspondence on the exercise of the prerogative of mercy between Lord Dudley, Lord Carmichael and myself.

The Governor-General has asked for the advice of his Ministers on the point raised by Sir Gerald Strickland and the Prime Minister has referred the matter to me.

The facts appear to be that D. was convicted on two charges: one of an offence against Commonwealth law (stealing a postal article) and one of an offence against State law (stealing a camera); and that he was sentenced on each charge to twelve months' hard labour, both sentences to be concurrent.

I agree with Sir Gerald Strickland that under these circumstances the prerogative of mercy with regard to the State offence rests with the State Governor; and that he can therefore remit the sentence for the State offence-of course without affecting the sentence for the Commonwealth offence.

[Vol. 14, p. 392]

  1. This opinion is unsigned in the Opinion Book, but it is attributed to Mr. Mahon