18 September 2013

NSW Parole Regime

Amid penal populism in NSW it is interesting to see that the state Law Reform Commission has released three Question Papers on parole as part of community consultation regarding the NSW criminal justice regime.

The papers follow the NSW Law Reform Commission's major Sentencing report (Report 139) noted here.

Question Paper 1 [PDF] discusses the design and objectives of the NSW parole system, including the distinction between automatic (court based) and discretionary parole.

Question Paper 2 [PDF] looks at the membership of the State Parole Authority and the Serious Offenders Review Council, including the appointment and expertise of members.

Question Paper 3 [PDF] examines the discretionary parole decision making of the State Parole Authority, including the role played by the Serious Offenders Review Council regarding serious offenders.

Paper 1 notes that -
When an offender is sentenced to imprisonment by a court in NSW, the court usually imposes a non-parole period (the minimum period that the offender must spend in custody) and a head sentence (the maximum period that the offender may be detained in custody). The offender may be released on parole at some point between the expiry of the non-parole period and the end of the head sentence .... 
When an offender is released on parole, the person serves the balance of the head sentence in the community and can be recalled to prison for breaching the conditions of parole. 
A court may in some circumstances also choose to impose a “fixed term” of imprisonment, which will not have the structure shown in Figure 1.1. An offender must spend the whole of a fixed term of imprisonment in custody and is released unconditionally at the end of the term. There is no possibility of parole as part of a fixed term of imprisonment. In NSW, all sentences of six months or less must be fixed terms. 
NSW has a mixed parole system. Offenders who are sentenced to a head sentence of three years or less (where the sentence is not a fixed term) are generally released to parole automatically at the expiry of the non-parole period by order of the sentencing court. The court also determines the conditions attached to the parole order. A court must make a parole order directing the release of the offender at the end of the non-parole period if the head sentence is three years or less. In this sense, NSW has automatic parole for such sentences. 
NSW also has a discretionary safeguard on automatic parole. Under certain circumstances, the State Parole Authority (SPA) may revoke a court-made parole order before the offender is released to parole.  This power allows SPA to override automatic parole and substitute a discretionary parole decision for offenders serving sentences of three years or less. 
If an offender is sentenced to a head sentence of more than three years, the court does not make an order. Instead, release to parole is at the discretion of SPA. 
SPA may decide to release an offender at the end of the non-parole period, or at some later point during the possible period of release on parole, or not at all. SPA is guided by different considerations than those that guide the sentencing discretion of courts. We look in detail at SPA’s parole decision making in Question Paper 3. 
If SPA grants parole, it also determines the conditions that will be part of the parole order (conditions are discussed further in Question Paper 4). Nearly all offenders who have been consistently refused parole will still be released at the end of the head sentence. The only exceptions are the few offenders serving life sentences or subject to a continuing detention order under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). 
As courts in NSW may also choose to impose a fixed term of imprisonment instead of a sentence structured as a head sentence and a non-parole period, the sentencing courts also effectively have a role in parole decision making. The court may choose to impose a sentence as a fixed term so there is no possibility of eligibility for parole.