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 on a belief held on reasonable grounds that there has been a breach of parole (section 143 of the CSA Act). The police may arrest a parolee without warrant if they believe on reasonable grounds that a parolee has breached their parole (section144 of the 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 parole order.

The Board does not deal with all alleged breaches. The enactment in 2020 of a COVD-measure and related Guidelines means that ACT CS officers now have the power to deal with a wide range of breaches of parole and ICOs for any offender Crimes (Sentence Administration) COVID-19 Emergency Guidelines 2020 | Notifiable instruments (act.gov.au) The Board has a limited or no role under the measure. This major change affects arrangements for managing offenders who are serving their sentence in the community in the ACT. Also, under the Crimes Act 1914 (Commonwealth) the Board does not have jurisdiction to make decisions about parole or breaches of parole or ICOs for federal offenders. These matters are referred by the ACT Corrective Services (ACT  CS) to the relevant Commonwealth officer or sentencing court.

When an alleged breach is submitted to the Board, the process is as follows. Upon being informed of an alleged breach, the Board aims promptly to 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 of the 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, the Board has the following range of options available to it:

  • 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 was not 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 of the 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

When 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 of the CSA Act).

Parole time credit or ‘clean street time’

Upon cancellation of parole, an offender will be 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  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 applying which the Board must apply (sections 161(E) and 161(G) of the CSA Act). For example, if the Board has issued a warrant in relation to a hearing that results in parole cancellation, 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.

Note, parole time credit does not apply to an ICO re-instatement. In the case of an ICO,  whether the offender is in the community or in custody this time is counted towards the ICO period, except if a warrant is issued by the Board, then the time when the warrant remains unexecuted extends the ICO period.

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 relating to 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 of the 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 of the 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) of the CSA Act).

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, it may take one or more of the following actions (section 64 of the 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 action or if they do not attend a hearing as required.

If a person is convicted of an offence while they are subject to an ICO that is punishable by imprisonment in the ACT a court must cancel an ICO, unless this outcome is not in the interests of justice. Upon cancellation the person completes the ICO in custody unless they successfully apply to the Board to have the ICO reinstated (section 65 of the CSA Act).

Note, parole time credit does not apply to an ICO re-instatement. In the case of an ICO, whether the offender is in the community or in custody this time is counted towards the ICO period, except if a warrant is issued by the Board then the time when the warrant remains unexecuted extends the ICO period.

Annual Report trends – Intensive Corrections Order breaches

Annual reports 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 which means the offender completes the ICO in custody unless they successfully apply to have the ICO reinstated.

Re-instatement of an Intensive Corrections Order

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

With effect 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 provide information about the outcome of proceedings in a particular case to third parties (section 196(3) of the CSA Act). The latter decisions are subject to the requirements of the CSA Act including human rights, 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.