Parole Breaches and Sanctions for Breaching

Under the Crimes (sentence Administration) Act 2005 (the CSA Act), a Community Corrections Officer must report breaches of parole to the Board when they hold a belief held on reasonable grounds that there has been a breach of parole (section 143 CSA Act). The police may arrest a parolee without warrant if they believe on reasonable grounds that a parolee has breached their parole (section144 CSA Act). A Judge or Magistrate may issue a warrant for arrest of a parolee if there are reasonable grounds for suspecting that the offender has breached or will breach the offender’s parole.

Upon being informed of an alleged breach, the Board aims to promptly conduct a hearing with the offender. The offender and other parties are given written notice by the Board of a breach hearing. The alleged breaches are provided to the offender in a written report prepared by the Community Corrections Officer, commonly referred to as a Breach Report.

The Board has various powers to have the parolee arrested and brought before the Board if the alleged breaches and circumstances justify this, or if the parolee does not attend a hearing as required (section 206 CSA Act).

At the hearing, the Board first considers the evidence about whether the alleged breaches occurred and decides if they are proved.

If the Board decides that the parolee has breached their conditions, then the Board has a range of options:

  • Take no further action.
  • Give the offender a warning about the need to comply with the offender's parole obligations.
  • Give directions about the offender's supervision in the community.
  • Change the offender's parole obligations by imposing or amending an additional condition of the parole order.
  • Cancel the offender's parole order.

Parole is automatically cancelled if a parolee commits a further offence during the parole period that is punishable by imprisonment, even if the parolee did not get sentenced to prison for that further offence. The cancellation will take effect for any further imprisonable offences that have been committed in the ACT, interstate or overseas. Cancellation is required even if the conviction is confirmed after the parole period finishes (sections 149-152 CSA Act).

Annual Report trends – breaches of parole

Published Annual Reports show that the trend is for a majority of parole breach matters to result in a formal warning. But a significant proportion result in cancellation, which requires the offender to serve the rest of their parole in prison unless they are granted parole again by the Board.

Cancellation of parole and effect on a sentence

Where parole is cancelled, an offender can re-apply to the Sentence Administration Board (the Board) for parole, subject to the new application not being ‘frivolous, vexatious or misconceived’. For example, so long as the same unsuitable accommodation is proposed, and no other circumstances have changed (section 122 CSA Act).

Parole time credit or ‘clean street time’

Upon cancellation of parole, an offender will be promptly advised of the end date for their sentence by the Board. In 2020, a new law commenced. The Sentencing (Parole Time Credit) Legislation Amendment Act 2019 changed the CSA Act so that ‘clean street’ time or ‘parole time credit’ may be counted towards the time of a parolee’s sentence. Parole time credit is the time spent in the community which is compliant with a parole order and that is to be counted towards an offender’s sentence.

A parolee who is returned to custody following cancellation of their parole order may serve only the time remaining on their head sentence at the time the parole order was cancelled. They may not be required to serve the period that remained to be served when parole was granted as was the case prior to the new law.

There are exceptions to parole time credit automatically applying which the Board must apply (sections 161(E) and 161(G) CSA Act). For example, if the Board has issued a warrant in relation to a hearing that results in parole cancellation then the parole time credit ends on the day before the warrant was issued. Further information can be found in the Parole Time Credit Fact Sheet and Information Sheet.

 

Intensive Correction Order breaches and sanctions for breaching

With the commencement of amendments to the Crimes (Sentence Administration) Act 2005 (the CSA Act) on 2 March 2016, the Sentence Administration Board's (the Board) supervisory powers were extended as follows:

  • Decide the consequences of sentenced offenders failing to comply with their obligations under Intensive Correction Orders (ICOs), and
  • Decide on the reinstatement of an ICO following the cancellation of the order.

(Chapter 5, CSA Act)

ICOs are imposed by the sentencing court. The obligations and core conditions of an ICO are set out in the CSA Act (sections 141-143). The sentencing court may impose additional conditions that will be set out in the order. The Board cannot change or add conditions to an ICO, unlike its powers for parole.

Similar to parole, if a Community Corrections Officer believes on reasonable grounds that the obligations or conditions have been breached then then they must report this non-compliance to the Board, usually in the form of a Breach Report (section 59 CSA Act). Persons subject to an ICO may be arrested by police without warrant or under a warrant issued by a Judge or Magistrate for alleged breaches of an ICO, similar to parole (sections 60-61 CSA Act). The Board aims to hold a hearing into alleged breaches promptly after they are raised, and the CSA Act specifies that this occur as soon as practicable (section 62(5)).

The Board must first decide if the breaches are proved.

If the Board decides that the ICO has been breached, the Board has a range of options (which differ from the options for breach of parole):

If the Board finds that the breach is proved, then it may take one or more of the following actions (section 64 CSA Act):

  • Give the offender a warning about the need to comply with the conditions of the order.
  • Suspend the offender's order, so the offender is in custody, for three or seven days, depending on whether the offender admits the breach of the obligations.
  • Cancel the offender's order so that the offender serves the order in custody and note that the offender can apply to the Board for a re-instatement of the order.
  • Refer the offender to a court for amending or discharging the order because the offender is unlikely to be able to comply with the order, for example due to ill health they cannot complete their community service or due to exceptional circumstances.

The Board has various powers to have the person subject to an ICO arrested and brought before the Board if the alleged breaches and circumstances justify this or if they do not attend a hearing as required.

If a person is convicted of an offence while they are on an ICO that is punishable by imprisonment in the ACT, interstate or overseas, then a court must cancel an ICO, unless this is not in the interest of justice. In this case the person completes the ICO in custody (s65 CSA Act).

 

Annual Report trends – Intensive Corrections Order breaches

Annual reports (2018-2019 and 2017-2018) published by the Board show that a majority of ICO breach cases result in a formal warning. However, a significant proportion result in cancellation of the ICO.

Re-instatement of an Intensive Corrections Order

If the Board cancels an Intensive Corrections Order (ICO), the person may seek re-instatement of the order after they have served at least 30 days in custody. They can apply earlier for re-instatement of an ICO if they believe there are exceptional circumstances (section 73 CSA Act).

The Board can re-instate an ICO. This requires the Board to be satisfied that the offender will comply with the ICO obligations and conditions. The Board must consider an assessment about whether the offender is suitable for an ICO, usually provided in the form of a written report by ACT Corrective Services.

Cannabis and compliance with conditions for Parole and an ICO

From 31 January 2020, personal possession of limited quantities of dried cannabis and the possession of a limited number of cannabis plants by adults in the ACT became legal following the commencement of the Drugs of Dependence (Personal Cannabis Use) Amendment Act 2019. However, the latter amendment did not change the law for offenders subject to parole or Intensive Corrections Orders: an offender who tests positive for cannabis will be in breach of such Orders.

 

Published Outcomes of Board Proceedings

Proceedings before the Board are not open to the public. The Board may decide to have the proceedings in a particular case open to the public, and it may also decide to make public the outcome of proceedings in a particular case (section 196(3) CSA Act). The latter decisions are subject to the requirements of the CSA Act including human rights legislation, the principles of natural justice and consideration of any adverse impacts or issues for victims.

The Board is developing a Practice Note about making outcomes public. When the Practice Note is published, the Board will proceed to list any outcomes that it has decided can be published. Publication would occur on this website.