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.