Jarryd Hayne has been sentenced to serve a head sentence of five years and nine months in custody, and a non-parole period of three years and eight months after being found guilty of sexual assault.
Mr Hayne was found guilty by a jury in March 2021 of two counts of sexual assault. He was found not guilty of the more serious charge of aggravated sexual assault. Upon the guilty verdict being returned, Judge Helen Syme indicated that a prison term would be “inevitable”.
Mr Hayne was sentenced in Newcastle District Court to full-time custody of five years and nine months, with a non-parole period of three years and eight months.
He will be eligible for release at the expiry of his minimum term, that being 5 January 2025.
What is a Sentence of Full-Time Imprisonment?
‘Full-time custody’ (also called ‘imprisonment’) means going to custody for a certain period of time.
It is important to be aware that a Court cannot sentence someone to imprisonment unless no other penalty is appropriate per section 5(1) of the Crimes (Sentencing Procedure) Act 1999.
When sentencing someone to full-time custody, the Judge should set a full-term of the sentence (eg 5 years and 9 months in the Case of Mr Hayne) and also a separate ‘non-parole period’ (which is the minimum term the offender must serve before being eligible for release; i.e. 3 years and 8 months).
There is, however, discretion for a Judge to refuse to set a ‘non-parole period’ for any reason they consider ‘sufficient’. This might be in circumstances where the offence is especially serious or if the offender has a particularly bad criminal record. In such cases, the Judge must record the reasons for not setting a ‘non-parole period’.
What is a Non-Parole Period?
A non-parole period is a minimum period for which the offender must be kept in detention for an offence. Usually, 75% of a sentence is served in custody and 25% on Parole. This can be altered if there is a finding of ‘Special circumstances’.
What is the standard non-parole period?
Per Section 54A of the Crimes (Sentencing Procedure Act), the standard non-parole period (‘SNPP’) represents the non-parole period for an offence, in the middle of the range of seriousness. This is to be assessed by considering only the objective factors affecting the relative seriousness of that offence.
Section 54B provides that any applicable SNPP is ‘a matter to be taken into account by a court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account’.
It is important to note that not all offences attract SNPPs. Rather, Table to Division 1A of the Crimes (Sentencing Procedure) Act 1999 lists all of the offences that attract SNPPs and the corresponding length of that period.
What are Special Circumstances?
Special Circumstances are the subjective considerations unique to each offender and are capable of warranting an adjustment to the period of time to be served in custody.
What constitutes Special Circumstances?
Examples of what can constitute Special Circumstances include (but are not limited to):
- Good Prospects of Rehabilitation;
- Risk of institutionalisation (in other words, the risk of an offender facing entrenched and serious recidivism);
- Drug and alcohol addiction;
- First custodial sentence;
- Ill health, disability or mental illness;
- Accumulation of individual sentences;
- Protective custody (though this cannot be found unless the offender provides evidence that their conditions of incarceration will be more onerous than usual);
- Age (offender’s youth is a common ground for a finding of special circumstances as is Advanced age);
- Hardship to family members (only in highly exceptional circumstances);
- Self-punishment (on account of self-inflicted shame and guilt already suffered combined with a mental condition);
- Parity (that is, the need to preserve proper equality between co-offenders).
What is the effect of a finding of special circumstances on a term of imprisonment?
If special circumstances are found, the court can set a non-parole period that is lower in proportion to the overall sentence (that is, less time is spent in custody and more time is spent on Parole).