Parole is the conditional release of an offender from custody in order to serve the balance of their sentence in the community. When an offender is granted parole, they serve the remaining portion of their initial prison sentence under supervision in the community.
Parole is not leniency nor a reward for good behaviour in prison. Rather, the purpose of parole is to supervise and support the reintegration of offenders before the end of their total sentence while maintaining a measure of protection to the community. Offenders are not free without supervision: they are supervised by Corrective Services NSW Community Corrections while continuing to serve their sentence on parole. Community Corrections assist and monitor offenders as they adapt to a normal and lawful community life.
Evidence suggests that parole periods can help to break the cycle of reoffending. A recent study by the Bureau of Crimes Statistics and Research has found that NSW prisoners who receive parole supervision after their release from prison reoffend less than similar prisoners who are released unconditionally. This is, in part, because offenders are supported with structured supervision during their reintegration, reducing their likelihood of reoffending. Parole also provides a more effective way of ensuring the community’s safety and interests than would a more sudden release of offenders at the expiry of their sentence without this assistance and supervision.
In NSW, there are two ways inmates can be released on parole: by way of a statutory order, which a court imposes, or by an order of the State Parole Authority (‘SPA’). Offenders who are imprisoned for 3 years or less are usually automatically released to statutory parole when their non-parole period expires. When a sentence is more than 3 years, the offender can only be released to parole if SPA approves this release.
Understanding Non-Parole Periods in NSW
Non-Parole Period Defined
Prison sentences of over six months are usually divided into a non-parole period and a parole period. The Crimes (Sentencing Procedure) Act 1999 defines the non-parole period as the ‘minimum period for which the offender must be kept in detention in relation to the offence.’ As such, a non-parole period refers to the minimum amount of time that an offender must spend in prison before they are eligible to be released on parole.
The court is required to fix a non-parole period that is at least three-quarters of the entire term of the sentence, unless there are ‘special circumstances’ for setting a shorter period.
In circumstances where the court is imposing an aggregate sentence of imprisonment in respect of 2 or more offences (that is, a sentence for multiple offences that takes into account the totality of all the offending but does not impose separate sentences for each offence), the court may set one non-parole period for all the offences after setting the term of sentence.
Standard Non-Parole Period
The standard non-parole period is a guidepost for a sentencing judge to consider when they are determining how long an offender must remain in gaol before being eligible for release on parole.
There is a collection of certain serious offences to which standard non-parole periods apply. These offences and their corresponding standard non-parole periods are set out in the Crimes (Sentencing Procedure) Act 1999 Part 4 Division 1A Table. For the purposes of sentencing an offender, these standard non-parole periods represent the non-parole period for an offence ‘that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness’ (Crimes (Sentencing Procedure) Act 1999 s54A).
Consideration of the standard non-parole period for an offence does not limit the matters that are otherwise required or permitted to be taken into account when determining an appropriate sentence.
While these standard non-parole periods indicate an appropriate sentence for an offence in the middle range of objective seriousness, there will be times when a longer or shorter non-parole period may still be set when aggravating and mitigating circumstances apply, or where there are other special circumstances. In such instances, the court must make a record of its reasons for doing so. In this way the standard non-parole periods act as a reference point rather than a strict requirement.
Ultimately, the purpose of this statutory scheme is to make sentencing more consistent and transparent.
Legislation Governing Non-Parole Period in NSW
The Crimes (Administration of Sentences) Act 1999 deals with matters such as eligibility for release on parole, the conditions to which parole is subject, the general obligations of offenders who are on parole, and the procedures for parole orders.
The Crimes (Sentencing Procedure) Act 1999 governs the determination of non-parole periods and includes an exhaustive table of standard non-parole periods, which is reproduced below.
Violent or Sexual Offences
The Table to Division 1A of the Crimes (Sentencing Procedure) Act 1999 is an exhaustive list of the specified indictable offences that attract a standard non-parole period in NSW. The majority of these offences are of a violent or sexual nature, and are as follows:
Standard non-parole period
Murder—where the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work
Murder—where the victim was a child under 18 years of age
Murder—in other cases
Section 26 of the Crimes Act 1900 (conspiracy to murder)
Sections 27, 28, 29 or 30 of the Crimes Act 1900 (attempt to murder)
Section 33 of the Crimes Act 1900 (wounding etc with intent to do bodily harm or resist arrest)
Section 33A (1) of the Crimes Act 1900 (discharging a firearm with intent to cause grievous bodily harm)
Section 33A (2) of the Crimes Act 1900 (discharging a firearm with intent to resist arrest or detention)
Section 35 (1) of the Crimes Act 1900 (reckless causing of grievous bodily harm in company)
Section 35 (2) of the Crimes Act 1900 (reckless causing of grievous bodily harm)
Section 35 (3) of the Crimes Act 1900 (reckless wounding in company)
Section 35 (4) of the Crimes Act 1900 (reckless wounding)
Section 60 (2) of the Crimes Act 1900 (assault of police officer occasioning bodily harm)
Section 60 (3) of the Crimes Act 1900 (wounding or inflicting grievous bodily harm on police officer)
Section 61I of the Crimes Act 1900 (sexual assault)
Section 61J of the Crimes Act 1900 (aggravated sexual assault)
Section 61JA of the Crimes Act 1900 (aggravated sexual assault in company)
Section 61KD (1) of the Crimes Act 1900 (aggravated sexual touching)
Section 66DA of the Crimes Act 1900 (sexual touching—child under 10)
Section 66A of the Crimes Act 1900 (sexual intercourse—child under 10)
Section 66B of the Crimes Act 1900 (attempt, or assault with intent, to have sexual intercourse with a child under 10 years)
Section 66C (1) of the Crimes Act 1900 (sexual intercourse with a child 10–14 years)
Section 66C (2) of the Crimes Act 1900 (aggravated sexual intercourse with a child 10–14 years)
Section 66C (4) of the Crimes Act 1900 (aggravated sexual intercourse with a child 14–16 years)
Section 66EB (2) of the Crimes Act 1900 (procure a child under 14 years for unlawful sexual activity)
Section 66EB (2) of the Crimes Act 1900 (procure a child 14–16 years for unlawful sexual activity)
Section 66EB (2A) of the Crimes Act 1900 (meet a child under 14 years following grooming)
Section 66EB (2A) of the Crimes Act 1900 (meet a child 14–16 years following grooming)
Section 66EB (3) of the Crimes Act 1900 (groom a child under 14 years for unlawful sexual activity)
Section 66EB (3) of the Crimes Act 1900 (groom a child 14–16 years for unlawful sexual activity)
Section 91D (1) of the Crimes Act 1900 (induce a child under 14 years to participate in child prostitution)
Section 91E (1) of the Crimes Act 1900 (obtain benefit from child prostitution, child under 14 years)
Section 91G (1) of the Crimes Act 1900 (use a child under 14 years for child abuse material purposes)
Section 93GA (1) of the Crimes Act 1900 (fire a firearm at a dwelling-house or other building with reckless disregard for the safety of any person)
Section 93GA (1A) of the Crimes Act 1900 (fire a firearm, during a public disorder, at a dwelling-house or other building with reckless disregard for the safety of any person)
Section 93GA (1B) of the Crimes Act 1900 (fire a firearm, in the course of an organised criminal activity, at a dwelling-house or other building with reckless disregard for the safety of any person)
Section 98 of the Crimes Act 1900 (robbery with arms etc and wounding)
Section 112 (2) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of aggravation)
Section 112 (3) of the Crimes Act 1900 (breaking etc into any house etc and committing serious indictable offence in circumstances of special aggravation)
Section 154C (1) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board)
Section 154C (2) of the Crimes Act 1900 (taking motor vehicle or vessel with assault or with occupant on board in circumstances of aggravation)
Section 154G of the Crimes Act 1900 (organised car or boat rebirthing activities)
Section 203E of the Crimes Act 1900 (bushfires)
Section 7 of the Firearms Act 1996 (unauthorised possession or use of firearms)
Section 51 (1A) or (2A) of the Firearms Act 1996 (unauthorised sale of prohibited firearm or pistol)
Section 51B of the Firearms Act 1996 (unauthorised sale of firearms on an ongoing basis)
Section 51D (2) of the Firearms Act 1996 (unauthorised possession of more than 3 firearms any one of which is a prohibited firearm or pistol)
Section 7 of the Weapons Prohibition Act 1998 (unauthorised possession or use of prohibited weapon)—where the offence is prosecuted on indictment
These standard non-parole periods are representative for offences that fall in the middle range of objective seriousness before adjustment for purely subjective considerations, and still apply as a guidepost where the judge finds that the particular offence falls below the middle range of objective seriousness.
Determining the Non-Parole Period: How is a Non-Parole Period Calculated?
Section 44 of the Crimes (Sentencing Procedure) Act 1999 provides the court with a guide for setting the non-parole period.
The balance of the term of the sentence – that is, the duration of the sentence remaining after the non-parole period has been served – must not exceed one-third of the non-parole period for the sentence unless the court decides that there are special circumstances for it being more. This is also true with respect to aggregate sentences. There is no rule that the balance of a term cannot be less than one-third of the non-parole period, but in such an instance the court should explain why a ratio in excess of 75% was selected as this is an exceptional outcome.
The court may decline to impose a non-parole period for an offence for which a standard non-parole period applies, but if so it must make a record of its reasons for doing so.
Section 46 of the Act specifies that a court may not set a non-parole period for a sentence of imprisonment if the term of the sentence is 6 months or less.
As a starting point, the non-parole period is imposed because justice requires that the offender serve that time in custody. It is the minimum period that the offender must spend in full-time custody having regard to all the elements of punishment including deterrence, the objective seriousness of the crime, and the offender’s subjective circumstances. This principle ensures that any reduction that might be considered appropriate for the purpose of converting punishment into an opportunity for rehabilitation is reasonably limited.
The risk of re-offending is an important factor when considering an appropriate non-parole period. Ultimately, the factors relevant to setting the non-parole period are the same as those for fixing the term of the sentence (set out in Crimes (Sentencing Procedure) Act 1999 s21A), but the weight given to each may differ. For example, a serious offence warrants a longer non-parole period due to its deterrent effect upon others, but the nature of the offence is not necessarily as important as it is when the overall sentence is decided.
A determination of ‘special circumstances’ for the purpose of mitigating or aggravating a non-parole period is a discretionary finding of fact. The full range of subjective considerations can warrant a finding of special circumstances, including:
- Risk of institutionalisation;
- Drug and alcohol addiction;
- First custodial sentence;
- Ill health, disability, or mental illness;
- Accumulation of individual sentences;
- Protective custody;
- Hardship to family members;
- Parity (between co-offenders); and
- Sentencing according to past practices.
Process of Determination
Section 44(1) of the Crimes (Sentencing Procedure) Act 1999 states that when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence. This does not mean that the reasoning process should begin by selection of the non-parole period, but rather that the pronunciation of orders is required to be done in that way. With respect to the decision-making process, it is considered erroneous to determine the non-parole period before determining the total sentence.
Implications of Breaching the Non-Parole Period in NSW
As the non-parole period is the strict duration of time an offender must remain behind bars, breaches include unlawful absence from custody as well as correctional centre offences committed while during a non-parole period. The Crimes (Administration of Sentences) Act 1999 governs the disciplinary action taken in these instances, noted below.
Penalties for Breaching a Non-Parole Period
The Crimes (Administration of Sentences) Act 1999 s 254 provides that if a person is unlawfully absent from custody during the term of a sentence and the absence occurs during a non-parole period of the sentence, both the term of the sentence and its non-parole period are extended by the duration of which the person was unlawfully absent from custody.
Further, Division 6 of that Act concerns correctional centre discipline and s 56 notes that if a Visiting Magistrate is satisfied beyond reasonable doubt that an inmate is guilty of a correctional centre offence, the Visiting Magistrate may make an order imposing the penalty of extension, by up to 6 months at a time, of the non-parole period of the sentence if the offence occurred during a non-parole period of the inmate’s sentence. This section also lists various other penalties that may be imposed for a correctional centre offence.
Appeals and Reviews
As with sentences, non-parole periods may be challenged as being manifestly excessive, which can form the basis of an appeal.
An appeal can also challenge a lack in adjustment, including by miscalculation or inadvertence, to the statutory ratio in light of special circumstances. Successful appeals against the duration of a non-parole period have involved discovery that the sentencing judge failed to give effect to their intention to vary the period on account of the applicant’s mental condition and need for rehabilitation and supervision.
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