The parole process and considerations by the Board

Sentencing law in the ACT requires the court to fix a non-parole period for offenders sentenced to a period of imprisonment of 12 months or more unless the court finds it inappropriate to do so. The part of a custodial sentence that is the non-parole period must be served in custody and this expires when the non-parole date is reached. The remainder of a custodial sentence, after the non-parole date has expired, is time that may be served in the community under supervision, provided parole is granted by the Sentence Administration Board (the Board).

The Board cannot legally deal with all parole applications. 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 authority or sentencing court.

The Crimes (Sentence Administration) Act 2005 (CSA Act) governs the making of parole orders (Chapter 7). It requires offenders to apply to the Board, in writing, and for the Board to decide if they should be released on parole. A parole application can be submitted to the Board up to six months before the offender’s non-parole date expires. Offenders are usually reminded by the Board’s Secretariat that they can apply for parole before their non-parole date expires.

If the offender believes they have “exceptional circumstances” they may make a special application for parole at any time to be released prior to the non-parole date expiring (section 121(2)-(4), 129(4) CSA Act). The application must include a written submission to the Board setting out the nature of the exceptional circumstances and any supporting information or evidence. If the Board finds there are exceptional circumstances, the Board then must decide if parole should be granted considering the criteria under section 120(2) of the CSA Act. Exceptional circumstances are not usually circumstances that were known at sentencing and are circumstances that are so highly unusual that early release is warranted.

For parole applications, the Board must conduct an inquiry into the application. The Board will invite submissions from relevant parties and call for reports on the offender. These reports include a report from ACT Corrective Services (ACTCS) – commonly called a Pre-release Report – and any other relevant reports on the offender, such as reports about progress and participation in prison programs, and information  from treating medical and alcohol and drug professionals. If the offender has been accepted into National Disability Insurance Scheme (NDIS) upon release, details of this acceptance, including any case plan, should be submitted.

Victims of the offender are contacted and invited to provide a submission to the Board in relation to the possible release of an offender.

In a parole application case, the Board first considers the documents before it, without the offender or any other parties present, in order to decide if parole can be granted at that stage (commonly referred to as an Inquiry). If the Board considers that parole cannot be granted at the Inquiry stage, the Board will set a time for a hearing into the offender’s application for parole and give notice of the hearing to the offender and other parties, including the Director of Public Prosecutions, ACT Police, ACT CS.

Following the Inquiry, the Board informs the offender, by way of a Notice of Hearing, of the issues of concern to the Board. Examples of issues that may be raised are as follows:

  • Failure to address offending behaviour while in custody through no or incomplete participation in offence-specific programs or services.
  • The need for further alcohol and drug counselling in custody and residential rehabilitation placement in the community.
  • Unsuitable, unconfirmed, or no post-release and prevention of relapse plans.
  • Unsuitable or no accommodation in the community.
  • Unmanaged risks of re-offending.
  • Inadequate information and plans for psychological/psychiatric treatment and support in the community.
  • Poor behaviour in custody and positive drug tests in custody.
  • History of non-compliance with parole or other orders served in the community.

At the hearing where the offender is present, a Community Corrections Officer from ACTCS participates in the hearing. Other participants may also include representatives of the Director-General of Justice and Community Safety Directorate, professionals from and representatives of community services that are supporting or will support the offender including those involved with any NDIS case plan, the Director of Public Prosecutions and ACT Policing. The offender is encouraged to be supported by family who can usually participate in the hearing, subject to any security issues and the technical capacity of the Board’s venue. An offender is entitled to be represented by a lawyer at a hearing.

The Board is subject to statutory and common law duties, including applying the principles of natural justice and operating in accordance with the Human Rights Act 2004 (HR Act). The rules of evidence do not apply to Board hearings (section 196 of the CSA Act); however, they offer a guide to how hearings are conducted. The Board aims to make the hearings informal and  fair, and to respond to special needs of those appearing before it where known and as required.

After the Board completes the hearing where the offender is present, it is required to either grant parole for the offender or refuse to make a parole order.

In making its decision at a hearing, the Board again considers the Pre-release Report provided at the Inquiry stage and any update (section 120 (2) (f) of the CSA Act). The Board also considers reports and submissions provided by other persons and agencies (sections 197 & 198 of the CSA Act), and the original parole application and any later submissions made by the offender. The Board may issue a Notice to a third party prior to a hearing for information or their attendance, and this contribution is considered at the hearing.

The Board considers the offender’s response to the issues it identified at the earlier Inquiry stage, as set out in the Notice of Hearing sent to the offender. The Board also has a range of material from prior Board and court proceedings before it, including for example:

  • History of breaches during prior community-based orders.
  • Judgements and transcripts of trials and court sentence hearings.
  • Victim impact statements presented at court sentencing.
  • Reports by experts, including health professionals, submitted to the court at trial or sentencing.
  • Any family violence or personal protection orders.
  • Criminal histories from the ACT and elsewhere.

Parole applicants are provided with copies of all material submitted to the Board for parole proceedings, except material made in-confidence under (section 192 of the CSA Act). Usually, the Pre-Release report is provided to a parole applicant prior to the Inquiry. If this has not occurred, the Board will adjourn a hearing as necessary to ensure the applicant has time to digest and respond to the report.

Parole is a privilege. The Board must consider a range of matters in deciding whether to grant parole and what additional conditions will apply (section 120 of the CSA Act), some of which are briefly summarised below.

Public Interest

The overarching consideration for the Board in parole decisions is that parole, and the conditions which attach to it, must be appropriate for the offender, with the public interest being of primary importance (section 120(1) of the CSA Act). The term public interest is not defined in the CSA Act and is accepted as a term that is broad in its meaning except by reference to the subject matter, scope, and purpose of the CSA Act. The ‘main object’ of the CSA Act is ‘to ensure, as far as practicable, that sentences are given effect’ (section 6 of the CSA Act). When the Act was passed, the Explanatory Memorandum explained that section 120(1) requires the Board to:

contemplate the general considerations of appropriateness and the public interest when making a parole decision. This may require the board to weigh the interests of the public at large against the individual interests of the offender before them.

Assessing the public interest involves taking into account a range of circumstances and issues including those listed in section 120(2)of the  CSA Act. Section 120(2) sets out a list of criteria the Board must consider when determining whether parole is granted, but this section does not limit what the Board can consider (section 120 (3) of the CSA Act). The considerations include:

  • The sentencing court’s comments.
  • The offender’s criminal history.
  • Victim concerns and safety.
  • Reports provided to the Board particularly by ACT CS.
  • Behaviour in custody and participation in activities and programs in custody.
  • Likelihood of reoffending and complying with conditions of a parole order.
  • The contribution parole can make to lawful community life.
  • Any special circumstances e.g. health issues.
Accommodation

The Board must consider the suitability of any proposed accommodation nominated by the parole applicant before granting parole. A Community Corrections Officer from ACTCS undertakes an assessment of the proposed accommodation. This assessment usually involves a home visit and interviews of proposed co-residents. The outcome of this assessment is available at the hearing.

The Board is unlikely to grant parole if there is no suitable accommodation, or if the applicant will be released to homelessness. On this point, the ACT Supreme Court has stated:

Sub-section 136(a)(i) of the Act requires a paroled offender to comply with the core conditions specified in s 137, therefore, it is apparent that a Board will, in practical terms, be prevented from granting parole to a person who does not have available somewhere to live which has been (or is likely to be) approved by the Director-General.

One of the matters which the Board must consider is contained in sub-s 120(2)(j) of the Act:

‘the likelihood that, if released on parole, the offender will comply with any condition to which the parole order would be subject...’

Plainly, if the material before the Board indicated that there was no accommodation approved by the Director-General available to the offender, a decision granting parole would immediately place the offender in the position of breaching his/her parole conditions the moment he/she commenced living at the non-approved premises in the community. In such circumstances, it is reasonable to expect that there would be little likelihood of the Board granting parole.

(Cruz v Director-General of the Justice and Community Safety Directorate [2019] ACTSC 291, [22-24])

Completion of prison programs

The Board will consider whether a parole applicant has undertaken programs in custody related to their rehabilitation and reducing the likelihood of re-offending, and if not, why not. For example, if alcohol or drug use were relevant to their offending then the Board will consider whether the applicant has successfully undertaken alcohol and drug programs available to them in prison. If the applicant is a sex offender, the Board will consider whether the applicant has completed a sex offenders treatment program in prison and their response to that program.

The Board’s interest in participation in such programs is to consider whether the parole applicant should be released to parole having regard to the criteria specified in the CSA Act, that is whether there is or is not a real risk of re-offending. Due to COVID requirements, some prison programs may have been impacted; however, even if a prison program has been so impacted, the Board will still consider the offender’s risk of re-offending including whether and when they will satisfactorily complete any critical prison rehabilitation program. On the issue of completing rehabilitation programs in prison prior to release on parole, the ACT Supreme Court has stated:

…prisoners are not compelled to participate in the ASOP [i.e. an adult sex offenders treatment program]. However, whether they participate in it or indeed any other educational or rehabilitation program run at the AMC [Alexander Maconochie Centre] will be a matter relevant to… the SAB’s [the Board’s] consideration of an application for parole.

So far as the latter is concerned the Board is only empowered to make a parole order for an offender if it considers that parole is appropriate for the offender, having regard to the principle that the public interest is of primary importance [s 120(1) of the CSA Act].  Plainly whether or not a sexual offender has been rehabilitated and the extent of any risk of further offending will be matters of significance in assessing where the public interest lies.

Further, s 120(2) of the [CSA Act]…sets out matters that the Board must consider…

The position is, therefore, that the plaintiff’s participation or non-participation in the ASOP will be a matter that the Board will take into account in making its decision about parole and may give to that issue such weight as it sees fit. However, participation in the ASOP is not a statutory precondition to eligibility for parole…

The question to be considered by the Parole Authority [the Board] is not ultimately whether an offender has undertaken such a programme, assuming that he or she was convicted of a sexual offence. The question is whether in all the circumstances an offender should be released to parole having regard to the criteria specified in the Act, crucially whether there is or is not a real risk of re-offending. In considering this question a number of matters are relevant. Of course, the nature of the offending itself is of significant importance…

…[Further, the] issue for a parole body [the Board] is whether or not, having regard to the statutorily mandated considerations, the statutory threshold for the grant of parole is met. As a consequence, particular facts such as the denial of guilt or refusal or inability to undertake a particular program in custody will not necessarily be determinative if that is inconsistent with the particular statutory framework for the parole authority’s consideration. However, plainly such matters may be taken into account in the context of the statutorily mandated considerations in relation to the grant or refusal of parole.

(Hoyle v Director-General Corrective Services [2019] ACTSC 226 [69, 71-74, 76])

Offender’s without a Valid Visa

If an offender applying for parole does not have a valid visa, it is likely that the relevant Australian Government authority will have served a notice that will result in their being taken immediately into that agency’s custody should they be granted parole. The Board still considers the parole application in the usual way. As part of its consideration of parole, the Board will also consider risks of re-offending in the country where the person might be deported to and the offender’s plans to minimise risks, as far as practicably possible.

New Zealand has a special arrangement such that a person deported to that country, and who is subject to an Australian parole order, is likely to be supervised and supported by the New Zealand parole system Returning offenders order | Department of Corrections.

Human Rights

The Board like other public authorities in the ACT, unless legislation requires otherwise, must interpret the CSA Act and related laws in a way that is compatible with the HR Act. It must not fail to give proper consideration to relevant rights under the HR Act when doing so (section 40B of the HR Act).

Rights relevant to the Board’s decision-making include those of the offender, for example the right not to be deprived of liberty ‘except on the grounds and in accordance with the procedures established by law’ (section 18 (2) of the HR Act). Rights and principles relevant to the Board also include those of victims (existing or potential), for example where there is a history of or potential for family violence, the right of the family and children to be ‘protected’ (section 11 of the HR Act).

Where a victim has expressed concern about the need for protection from an offender and they are registered, they can receive information about an offender’s application for parole and provide a submission or oral evidence to the Board (section 4(l)of the Victims of Crime Act 1994, and also see various sections in the CSA Act, for example. section 123). The HR Act also sets out considerations for evaluating how to balance the rights of offenders and others, for example victims, and how to balance private and public interests - in short, a human right may be limited where it is reasonable and demonstrably justified (section 28 of the HR Act).

Annual Report trends - parole

Annual Reports published by the Board continue to show that the trend is for the majority of parole applications to be granted (see past years’ Annual Reports).

 

Parole Refused

If a parole application is refused by the Board the offender may re-apply. The Board may reject the new application without a hearing in some circumstances, that is if a prior application was refused by the Board in the last 12 months and the new application is substantially the same (section 122 of the CSA Act). Any new application should address the issues that resulted in the Board’s previous refusal to grant parole as set out in the transcript from the prior hearing.

Parole Conditions

Where the Board decides to release an offender on parole, the offender is subject to a range of conditions that, if not complied with, will lead to breach of parole proceedings and possibly cancellation of parole. Conditions of parole are designed to protect victims and the community, to reduce the likelihood of further offending and to support the ongoing rehabilitation of the offender.

There are two categories of parole conditions: core and additional. Every parole order is subject to all of the core conditions as set out in the Crimes (Sentence Administration) Act 2005 (CSA Act) and the Crimes (Sentence Administration) Regulation 2006 (the Regulation). Core conditions cannot be varied by the Board and include that a person on parole must:

  • Reside in approved accommodation, not commit a new offence in the ACT or elsewhere.
  • Report to the Community Corrections Officer as required by ACT Corrective Services (ACTCS).
  • Not use a prohibited substance or abuse a medicine (which includes not using cannabis).
  • Must not leave Australia without the Board’s prior written permission

(See section 137 of the CSA Act; and Regulation 4, Crimes (Sentence Administration) Regulation 2006).

Similarly, if an offender is granted parole interstate and then is permitted to transfer their parole to the ACT, any core conditions of that interstate parole order cannot be varied by the Board.

The Board can impose additional parole conditions provided they are not inconsistent with the core conditions, for example: those aimed at protecting the victim; not to consume alcohol; to be subject to a curfew; to remain in a rehabilitation facility; to complete a program; and/or to attend other specified services for support and treatment. Additional conditions can be imposed by the Board at any time during a parole order, for example as a consequence of a breach or management hearing.

The Board can impose an additional condition that effectively prevents the offender leaving Australia. This condition involves the Chair of the Board advising the relevant Commonwealth authority to cancel or refuse an Australian passport for the offender in order to ensure that the offender does not travel overseas (section 12 Australian Passports Act 2005 (Cth). 

Upon application to the Board by the offender, the Board can amend or remove any additional conditions it has imposed. All conditions automatically expire at the expiration date of the parole order.

Management of Parole by the Board

Day-to-day supervision of a parolee is undertaken by Community Corrections Officers of ACT Corrective Services (ACT CS). The Board can order a management hearing at any time to review a parolee’s compliance with and progress on parole. For example, the offender may have new charges or their behaviour in the community raises concerns. An offender can request a management hearing, for example, if they wish to have an additional condition varied, for example to travel overseas, or to have their order cancelled (section 153 of the CSA Act).

Following a management of parole hearing, the Board has a range of options (section 156 of the CSA Act) including to:

  • Take no further action if the order is proceeding well.
  • Amend the additional conditions of an order.
  • Cancel parole where it is or would be no longer suitable for the offender or where the offender applies for it to be cancelled.