The relationship between non-parole periods and offences committed whilst in custody has been something of a hot topic in the ACT for the past year. In the ACT Supreme Court decision of Biddle v Gatherer  ACTSC 236, it was recognised (for what appears to be the first time) that the court is not permitted to set a non-parole period for any offences committed whilst in lawful custody.
This interpretation stemmed from the fact that section 64(2)(e) of the Sentencing Act provides that a sentence of imprisonment imposed for an offence committed while in lawful custody is an “excluded sentence” for the purposes of Part 5.2 of the Sentencing Act. Part 5.2 is the part of the Sentencing Act that allows the court to impose non-parole periods. As such, for offences committed whilst in lawful custody, the Sentencing Act, in certain terms, precludes the setting of a non-parole period.
Whilst the inability to set a non-parole period may not readily appear significant, the practical effect of section 64 can become be very serious. Take for example a scenario where a person has been sentenced to 2 years imprisonment with a non-parole period of 1 year. This person then commits a further, more minor, offence whilst in custody to which they are sentenced to 1 month imprisonment. The effect of s64 is such that because they cannot be given a non-parole period for this new 1-month sentence, the imposition of this further 1 month imprisonment, even if concurrent with the original sentence, serves in effect to cancel the non-parole period of the original sentence and the person is now required to spend the full 2 years in custody.
Because of this effect, Justice Loukas-Karlsson in Biddle v Gatherer stated that “section 64(2)(e) may require some legislative attention as to whether greater flexibility in sentencing is appropriate in this context”.
Notably, since the decision of Biddle v Gatherer the ACT Supreme Court has developed strategies and alternative sentencing regimes in attempt to avoid manifestly excessive sentences occurring as a result of section 64. In the decision of R v Gordan 2021 ACTSC 283, Justice Elkaim sentenced the offender to a suspended sentence (to which a non-parole does not apply) rather than full time imprisonment. This meant that the person could still be released on parole, however, they would then be subject to a suspended sentence. Similarly, Justice Mossop also approached the problems posed by section 64 by imposing a suspended sentenced and held at :
“It is possible to achieve such a sentencing outcome that is generally consistent with this scheme within the constraints of ss 64 and 72 of the Crimes (Sentencing) Act. That is, by recognising the fact that pursuant to the existing sentence the appellant has now spent just over two years in custody and, having regard to that fact, conditionally suspending the assault sentence. While, outside the context of the existing sentence and the legislative provisions that apply to the assault sentence, the suspension of the assault sentence would be plainly inappropriate having regard to the objective gravity of the offending, when considered in the unusual context of the present case it achieves, as outlined above, an appropriate sentencing outcome. It allows the appellant to be granted parole but substantially extends the period during which he is subject to supervision and leaves hanging over him a very significant period of imprisonment if he fails to comply with the conditions of the good behaviour order associated with the suspended sentence. That provides every available incentive for his rehabilitation in the community.”
Ultimately, the issue of how section 64 operates and how it may be approached remains to be seen. There remains the possibility of legislative reform and other sentencing regimes being developed in the courts. But regardless of its future, section 64 is now a primary concern in any sentence relating to offences committed whilst in custody.
Jack Johnson, Lawyer