Will I Get Parole? Parole Board Decision-Making in NSW

What is Parole?

Parole is the release of an inmate after the expiry of their ‘non-parole period’ (the minimum term they must spend in prison) and before the expiry of their full term of imprisonment. So, for example, an inmate who is given a non-parole period of 7 years and a full term of 10 years in prison will be eligible to apply for parole after 7 years.

A grant of parole will always be conditional upon the inmate being of good behaviour (ie not committing any further criminal offences) and accepting the supervision of Community Corrections (formerly known as the Probation and Parole Service).

What is the Purpose of Parole?

The primary purpose of parole is to ensure the smooth transition of inmates back into society by ensuring they have access to appropriate support and rehabilitation services such as mental health support, and drug and alcohol programs, before the expiration of their full terms of imprisonment. Parole therefore attempts to avoid the situation where a person might be ‘left to their own devices’ in the community without support.

In addition to providing access to support services, parole is intended to ensure the community is protected through the supervision of inmates.

A parolee will constantly face the prospect of their parole being revoked, which acts as an incentive to comply with parole conditions and participate in rehabilitation programs – something which can in turn reduce the likelihood of reoffending.

Spotlight on Parole

Recent years have seen a renewed debate about the pro’s and con’s of granting parole to inmates.

Tragic cases like parolee Adrian Bayley’s rape and murder of Jill Meagher in 2012 have caused considerable public concern – with many outraged the convicted sex offender was released into the community before the expiry of his full term, giving him the opportunity to commit the heinous crime.

Indeed in 2016, the Victorian Coroner found that Ms Meagher’s murder was preventable as Bayley should never have been released into the streets. After examining the issue in detail, the Coroner ultimately found that the parole system had failed to adequately prioritise public safety in Victoria.

Parole Laws in New South Wales

Here in NSW, the Crimes (Sentencing Procedure) Act 1999, sets out a number of important rules to be applied by Courts in relation to parole.

Whilst the Act is complicated and nuanced with respect to how sentences of imprisonment are to be set, the basic requirements in relation to parole can be summarised as follows:

  1. Section 46 prohibits parole from being set if a Court sentences an offender to imprisonment of 6 months or less.
  2. Section 44 requires a Court to split sentence of imprisonment between a parole and a non-parole period. As stated, a non-parole period is the time an offender must spend behind bars; the parole period is the time he or she may apply for released, and if successful be subject to supervision in the community.The law dictates that the parole period must not exceed one third of the non-parole period unless there are “special circumstances”. In other words, if a person is sentenced to 9 years’ imprisonment, a non-parole period of 6 years and 9 months will be set – with a parole period of 2 years and 3 months – unless some special circumstanced are found by the court. A lower percentage (eg 50%) may be set as a non-parole period if special circumstances are found eg for a young offender with excellent prospects of rehabilitation.
  3. Section 50 provides that if a person is sentenced to 3 years of imprisonment or less, they are entitled to be released automatically to parole upon the completion of their non-parole period.The corollary is that if a Court sentences someone to a period of imprisonment of greater than three years, there is no automatic right of release to parole, and the State Parole Authority (‘SPA’) must make an administrative decision on whether to release an offender at the completion of their non-parole period.

Matters Considered by the State Parole Authority

Where an offender is sentenced to more than three years imprisonment, Section 135 of the Crimes (Administration of Sentences) Act 1999 prohibits the SPA from granting parole unless it is satisfied, on the balance of probabilities, that such a grant is ‘appropriate in the public interest’.

Making that decision, the SPA must have regard to a range of matters including:

(a) The need to protect the safety of the community,
(b) The need to maintain public confidence in the administration of justice,
(c) The nature and circumstances of the offence to which the offender’s sentence relates,
(d) Any relevant comments made by the sentencing court,
(e) The offender’s criminal history,
(f) The likelihood of the offender being able to adapt to normal lawful community life,
(g) The likely effect on any victim of the offender, and on any such victim’s family, of the offender being released to parole,
(h) any report in relation to the granting of parole to the offender that has been prepared by or on behalf of the Probation and Parole Service.

It is evident from the legislation that public safety and the interests of victims are important considerations. If an offender is too dangerous to be released, they should ordinarily be refused parole and required to serve their entire sentence in prison.

Human Headline versus Reasoned Decision Making

Various pundits have recently called for tougher parole laws in response to high profile cases such as the Jill Meagher murder.

Indeed, self-described ‘human headline’ and now federal Senator Derryn Hinch bases his ‘Justice Party’ platform on a number of specific issues related to the criminal justice system, including bail and parole reform.

Indicating his limited understanding of this complex area, Mr Hinch’s Justice Party website begins with a simplistic banner “Make Parole Tougher”, continuing with, “You can sum this up in two words I loath repeating: Adrian Bayley”. Mr Hinch, and other radio shock-jocks like Ray Hadley, use extreme examples and sensationalism to stir public outrage, ultimately pressing their own simplistic agenda.

What Mr Hinch and cohorts fail to recognise is that it is not possible to ‘sum up’ very complicated, often competing, issues including rehabilitation, community protection, recidivism, and civil liberties in ‘two words’. These are complex issues and simply refusing everyone bail and parole is not the answer.

The understandable public outrage and grief following the tragic murder of Ms Meagher is evidence that the community wants change. But perhaps change should start with a better resourced Corrective Services system which strikes the right balance between punishment and rehabilitation. What commentators like Hinch fail to recognise is that the long term public interest calls for the rehabilitation of offenders, in order to reduce re-offending, rather than just throwing everyone who is charged with a criminal offence behind bars, refusing them bail and throwing the key away for the entirety of their sentences.

Increasingly punitive laws in relation to bail, parole and maximum sentences will only serve to ‘kick the can down the road’.

If the intention of Hinch is to keep more inmates behind bars for their whole sentences, he is really demanding that inmates miss the opportunity for community based rehabilitation, in which case they will represent a greater threat to the community when ultimately released.

After all, you can’t just give everyone a life sentence – if you were to do that, Hinch would still be in prison.

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