The term parole refers to the release of a prisoner under supervision, prior to the expiry of a sentence of imprisonment.
The rationale behind the granting of parole before the end of a total sentence is that it provides a safer pathway for the re-integration of an offender into the community, when compared to simply releasing the offender at the end of their sentence, with no period of supervision in the community.
When a person is sentenced to a term of imprisonment following a conviction for a criminal offence, the non-parole period is often considered to be the most significant outcome as it sets the earliest possible date they may be released from custody. The expiration of an offender’s non-parole period has been referred to in practical terms as “freedom day”.[1]
The State Parole Authority
In NSW, the State Parole Authority (‘SPA’) is the statutory body entrusted with making parole decisions including:
- Decisions as to whether to grant parole to an offender
- Setting parole conditions on release
- Determining whether parole should be revoked
The SPA consists of at least 16 members at any one time. The members are appointed by the Governor of NSW. While many members of the SPA are judicial officers such as Judges or Magistrates, or correctives officers or police officers, the board also comprises of community members from outside the criminal justice system appointed to represent the “composition of the community at large”.[2] As at December 2021, there are eight judicial officers, 14 community members and eight official members serving on SPA panels.[3]
Unlike sentencing of an offender, the decision to release an offender on parole is an administrative, non-judicial process. All decisions must be made in accordance with the legislate framework set out under the Crimes (Admission of Sentences Act) 1999 (NSW) (‘CASA’).[4]
The Initial Parole Decision
The SPA is required to hold a private meeting at least 60 days before the parole eligibility date of an offender. At this private meeting, the SPA considers whether an offender should be released on parole. The ultimate question the SPA considers is set out under section 135(1) of CASA:
The Parole Authority must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community.
The decision as to whether to grant parole is made following the casting of votes by SPA members, with the final decision reflecting the majority of votes. The offender has no right to make submissions to the SPA in advance of the private meeting and is informed of the SPA decision by way of written notice.
For sentences of imprisonment of 3 years or less, where a non-parole period has been set, the SPA is required to automatically order the release of an offender on parole at the expiration of the non-parole period.[5]
Parole Hearings
If parole is refused by the SPA following a private meeting, an offender can seek reconsideration of the decision by way of a public hearing. Conversely if the SPA makes the decision to grant a ‘serious offender’[6] parole, it must notify any registered victims of the offender. The victim or victims then also have the right to seek a public hearing, in which the initial parole decision is reconsidered.
At a public hearing, an offender is entitled to be represented by a legal practitioner if they wish and to make submissions to the SPA at the hearing. The offender can also call and examine witnesses.
The Commissioner for Corrective Services and any registered victims can also make submissions at the hearing.
Generally, the offender appears at a hearing by way of audio-visual link (AVL), although an offender can apply to the SPA to appear in-person.
In addition to the calling of witnesses, the SPA also has consideration to documentary evidence including inmate behavioural records, psychiatric reports and evidence of completion of relevant rehabilitation programs. Correctives services also generally prepare a pre-release report. The SPA can require for psychological or medical examinations to be carried out in certain circumstances.
Following the consideration of evidence at the public hearing, the SPA makes a decision as to whether to grant parole to an offender, and the conditions of the offender’s parole. If parole is refused, the decision is reconsidered by the SPA every 12 months until the expiration of the offender’s total sentence.
Conditions of Parole
The standard conditions of parole are:
- You must be of good behaviour.
- You must not commit any offences.
- You must adapt to normal lawful community life.
When you are first released on parole:
- You must report:
- a) to a community corrections officer at a time and place directed, or
- b) if you have not been given a direction, to a Community Corrections office within 7 days of your release.
While your parole is supervised:
- You must report to a community corrections officer at the times and places directed by the officer.
- You must comply with all reasonable directions from a community corrections officer about:
- a) the place where you will live
- b) participating in programs, treatment, interventions or other related activities
- c) participating in employment, education, training or other related activities
- d) not undertaking specified employment, education, training, volunteer, leisure or other activities
- e) not associating with specified people
- f) not visiting or frequenting specified places or areas
- g) ceasing drug use
- h) ceasing or reducing alcohol use
- i) drug and alcohol testing
- j) monitoring your compliance with the parole order
- k) giving consent to third parties to provide information to the officer that is relevant to your compliance with the parole order.
- You must comply with any other reasonable directions from a community corrections officer.
- You must permit a community corrections officer to visit you at the place where you live at any time, and permit the officer to enter the premises when they visit you.
- You must notify a community corrections officer if you change your address, contact details or employment. You must do this before the change occurs if practicable, or within 7 days of the change occurring.
- You must not leave New South Wales without permission from a community corrections manager.
- You must not leave Australia without permission from the State Parole Authority.
The SPA can also impose additional more onerous conditions, including electronic monitoring.
Revocation of Parole
Following an offender’s release, the SPA can revoke an offender’s parole at any time. Commonly, parole is revoked when conditions of parole are breached by an offender or if the offender is charged with fresh offences during the parole period.
Implications of Parole
As with the original sentence imposed for an offence, the implications to an offender following a parole hearing can be significant. The decision by the SPA to refuse parole can result in years of additional imprisonment being served in custody by an offender. Further, the conditions on which parole is granted can also have a bearing on an offender’s ability to effectively re-integrate into the community without undue or oppressive restrictions on their freedom.
Should you or someone you know be refused parole or require representation at a parole hearing, it is essential you receive legal advice at any early stage. To discuss your options, call our Sydney Office of Hugo Law Group on (02) 9696 1361 to make an appointment to speak to one of our lawyers.
Damien Mahon, Senior Lawyer
[1] ‘Evidence and parole proceedings in the State Parole Authority’ presented by Sian McGee, barrister at LegealWise conference on 18 November 2022.
[2] Section 183(2)(e) of the Crimes (Admission of Sentences Act) 1999
[3] See http://www.paroleauthority.nsw.gov.au/Pages/about-us/membership/membership.aspx.
[4] See specifically Part 6, Part 8 and Schedule 1.
[5] Section 158 of the Crimes (Admission of Sentences Act) 1999
[6] Serious offender is defined under section 3 of the Crimes (Admission of Sentences Act) 1999
