A Simple Guide on Parole and Imprisonment Sentences in NSW

Jimmy Singh and Poppy Morandin.

 

Mohammed Skaf, who was jailed over a series of gang rapes on women and girls in the lead up to the Sydney Olympics, is set to be released on parole.

Skaf was only 17 when he and a group of at least 14 other men, including his older brother Bilal Skaf, sexually assaulted several women across Sydney in 2000.

Some of the girls were as young as 14.

Skaf was sentenced to 22 years, 11 months, and 30 days imprisonment, with his jail term set to expire on 1 January, 2024.

However, he has been eligible for parole since January 2018, but has been denied several times previously.

In a parole review hearing on Friday, State Parole Authority chairman David Frearson SC confirmed that the state would not oppose parole subject to strict conditions, including electronic monitoring.

Whilst Fearson characterised Skaf’s offending as ‘horrendous’, he noted that ‘everybody gets out eventually’.

Fearson stated that one of the two pathways available to reintegrate Skaf into society, external leave, was not feasible due to it being cancelled amid the COVID-19 pandemic.

External leave enables gradual integration., however it has been cancelled to prevent the spread of the virus into the prison system.

It leaves granting parole as the only viable option, with Fearson ultimately stating that Skaf needs to complete a rehabilitation course he is currently undertaking before the final decision is made.

Skaf commented how he only had one more week until he had completed the RUSH (‘Real Understanding of Self Help’) program.

The 44-hour NSW Corrective Services program is designed to teach ‘self-help mechanisms’ that can help overcome ‘poor self-control and impulsivity’.

“You need to be very, very careful that you stay out of trouble. If you don’t you will be back here,” Judge Frearson warned.

Of course. Thank you, Your Honour,” Skaf replied.

The Serious Offenders Review Council and NSW Community Corrections have recommended that Skaf be subject to strict parole conditions including electronic monitoring.

The State Government has also affirmed that it does not oppose Skaf being paroled, as long as he is released under the harsh monitoring conditions.

 

Imprisonment Sentences of 6 Months or Less in NSW

In New South Wales, if a court sentences an offender to imprisonment for 6 months or less, then all of this sentence must be served in custody, without any parole, pursuant to section 46 of the Crimes Sentencing Procedure Act 1999 (NSW). The parole period is the period the offender can be released back into the community to serve the remainder of the sentence, which may or may not include conditions.

Imprisonment Sentences of More than 6 Months in NSW

If a court sentences an offender to imprisonment beyond 6 months, the court is generally required to set a non-parole period, under section 44. The non-parole period is the minimum period an offender must be kept in detention for the offence.

The non-parole period is the time during which the offender cannot be released from prison on parole.

The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are ‘special circumstances’ for it being more.

However, exceptions to setting a non-parole period are contained under section 45, and include that the court may decline to do so including due to the nature of the offence’s, or because of any other penalty previously imposed on the offender.

Some offences have a ‘standard non-parole period’ set by legislation which are a designed to reflect only as a guidepost or yardstick the non-parole period for an offence which is engaged if the offence falls in the middle of the range of objective seriousness for like offences, reflected in section 54A(2).

The standard non-parole period provisions only apply to certain offences outlined in the table to Division 1A.

Whilst the standard non-period is not binding on sentencing judges, reasons must be provided for giving longer or shorter periods.

Parole for Imprisonment Sentences of 3 Years or Less

When a non-parole period has been ordered by the court for an imprisonment sentence of 3-years or less, the court cannot make an order to direct the release of the offender upon the expiration of the non-parole period. However, the court must state when the sentence starts and when the offender will be eligible for release on parole.

For sentences of imprisonment of 3 years or less, where a non-parole period has been set, the law requires the offender be released on parole, as of right, at the expiration of the non-parole period, according to s158(1) Crimes (Administration Sentences) Act 1999 (NSW).

The conditions of parole are also outlined in Division 1 of Part 6. The Parole Authority can impose further conditions it considers appropriate.

Parole for Imprisonment Sentences of More than 3 Years

If the imprisonment sentence is more than 3-years, where the court imposes a non-parole period and a parole period, the offender does not have a right to be released at the expiration of the non-parole period. The offender will be eligible for parole at this time.

Whether the offender is released on parole at the expiration of the non-parole period is left up to the discretion of the Parole Authority. In addition to this, only the parole authority then has the power to impose any conditions to the parole if parole is granted.

Parole in NSW

Whether the imprisonment sentence is less than or more than 3 years, the pre-requisite to be released on parole is always subject to the parole eligibility requirements under section 126. So, when is an inmate eligible for parole? This means the offender will be eligible if he/she is subject to at least one sentence for which a non-parole period has been set, and he/she has served the non-parole period of each such sentence and is not subject to any other sentence.

At the end of an offenders non-parole period, he/she will be eligible for release on parole at the Parole Authorities discretion. The Parole Authority will not grant parole to an offender unless satisfied that it’s in the interest of the community safety to do so, under section 134 Crimes (Administration Sentences) Act 1999 (NSW).

When considering whether in the interest of the community safety to release an offender on parole at the end of a non-parole period, the Parole Authority will base its decision on the following factors:

  • Any risk of community safety
  • Likelihood of affecting the risk of reoffending if released
  • Community safety if released on parole without supervision, or at a later date with shorted period of supervised parole.
  • Nature and circumstances of the offence
  • Sentencing Judges comments on sentence
  • Criminal history
  • Likely effect on the victim and victim’s family
  • Any reports on granting parole prepared by a community corrections officer, or other authority
  • Any other matters considered relevant by the Parole Authority, including any post sentence assistance and progress of this towards rehabilitation

 

Parole Conditions

The parole conditions include standard conditions and may include additional conditions. The Parole Authority may impose additional parole conditions depending on the offender and any risk of community safety, likely effect on any victim and any such victim’s family, and the management of the risk of breaches of parole by the offender.

Standard parole conditions include:

  • To be of good behaviour,
  • Not to commit a further offence,
  • To adapt normal lawful community life,
  • Supervision condition, including the following:
    • To report to a community corrections officer at a specified time and place,
    • If no direction is given, then to report to an office of Community Corrections within 7 days of release,
    • To comply with all reasonable directions of a community corrections officer regarding place to reside, participation in programs, treatments, intervention activities, participation in employment, education, training or other related activities (or not to undertake such activities), not to associate with a specified place or area, ceasing drug use, not to associate with a specified person, not to frequent or visit a specified place or area, cease or reduce alcohol use, drug and alcohol testing, requirements regarding monitoring compliance, to give consent to third parties providing information to a community corrections officer about your compliance the parole order,

To permit a community corrections officer to visit your home at any time and, for that purpose, to enter the premises,

  • To notify a community corrections officer of any change in your residence, contact details or employment before the change occurs or at least within 7 days of the change occurring,
  • Not to NSW without permission from your community corrections manager,
  • Not to leave Australia without permission of the Parole Authority.
  • If serving a sentence for a serious sex offence, further conditions will apply, including electronic monitoring, and a condition to submit a schedule of proposed activities for approval by a community corrections officer if directed to do so by a community correction officer.

It is possible to be exempt from a supervision condition if the Parole Authority is satisfied that the exceptional circumstances of the case justify the exemption under s128D. Such an exemption may then be with or without conditions.

The supervision or any other conditions may be suspended at the discretion of the community corrections officer for either the entire or part of the parole period. Such a suspension may be either with or without conditions, according to section 128E.

The community corrections officer can suspend a supervision condition under clause 218 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) after considering the risk of re-offending, criminal history, likely benefits of the supervision condition continuing and effect of any other measures that are being or may be taken to address the risk or reoffending, and the resources available to supervise you and other offenders who may be at a higher risk of reoffending. The suspension order must first be approved by an officer more senior that the community corrections officer.

If the Parole Authority decides to impose conditions about residence or treatment, the Parole Authority must consider a report from a community corrections officer as to your circumstances, and must also be satisfied that after reviewing the report, it is feasible to secure compliance with the conditions. If the conditions require cooperation of someone else, the other person’s consent is required.

 

The Parole Orders Must be Explained to Offenders

An inmate who’s granted parole by the Parole Authority must be given a copy of the parole order, with further copies to the governor of the jail and the Commissioner.

According to clause 217 Crimes (Administration of Sentences) Regulation 2014 (NSW), before the offender is released from prison on a parole order, the governor must ensure that:

  • The parole order is read to the offender,
  • A copy of the parole order is given to the offender,
  • The effect of the parole order is explained to the offender in language he/she is capable of being understood by the offender,
  • The offender acknowledges that he understands the conditions of being released on parole by signing a statement stating same on a copy of the parole order (and a copy of this is kept with the prison)
  • All copies of the parole order are to be endorsed with the offender’s date of release, and

 

Parole for Sentences of Imprisonment of Over 3 Years: Less Serious Offenders

Generally, the Parole Authority is required to consider whether an offender should be released on parole at least 60 days before the expiration of the non-parole period, according to section 137 Crimes (Administration Sentences) Act 1999 (NSW). However, the Parole Authority can delay deciding on this until at the latest 21 days before the non-parole period expires if:

  • The Parole Authority is not able to finish determining whether or not to grant parole due to the required report not being made yet, or
  • Other relevant factors are required to be further considered.

If the Drug Court has revoked the offender’s compulsory drug treatment order, the Parole Authority can consider whether or not to grant parole within 60 days before the end of the non-parole period.

 

If Parole is Refused and Review of Parole Refusal Notices

If parole is refused by the Parole Authority, the Parole Authority must give notice of the refusal to the offender and determine whether the offender requests a reconsideration (review) hearing of the refusal of parole.

The decision to refuse parole notice must inform the offender that:

  • The refusal of parole,
  • That the offender can apply for reconsideration of the refusal,
  • That there will be a hearing if the offender applies to have this decision reconsidered,
  • That the Parole Authority will consider any submissions by the offender when making its final decision on whether to grant parole after initially refusing it,
  • Outline of the address the reconsideration application should be sent to, and the date by which time an application must be made,
  • Any copies of the reports and other documents intended to be used by the Parole Authority in making its final decision.

Once an offender applies to have the refusal reviewed, the Parole Authority will notify the offender as to the date, time and place of the hearing.

On the hearing of the review, the Parole Authority will decide whether or not to grant parole or defer the offenders release on parole after reviewing all reports, documents, submissions and other information placed before the Parole Authority, according to section 141 Crimes (Administration Sentences) Act 1999 (NSW).

If the Parole Authority decides to defer the offender’s release during the review hearing, it may only defer it once, and is not permitted to defer it for more than two months. If the Parole Authority decides to still refuse parole, a notice will be provided to the offender notifying him/her of this decision.

When the Parole Authority is reconsidering parole during a review hearing, the Parole Authority must take into account any submissions made by the Commissioner to the Parole Authority.

 

When is an Offender Next Eligible for Parole After Parole is Refused?

After being refused parole by the Parole Authority, the offender can apply to be released on parole (if still eligible) next at any time within 90 days before the anniversary of the expiration of the initial non-parole period date (the annual review date, which is the 12-month period).

After a Parole Authority receives an offenders application to be released on parole within that time frame, the Parole Authority must consider whether or not to grant parole no more than 60 days before the annual review date.

The Parole Authority can also consider granting parole without the offender making an application and after he/she becomes eligible for parole if circumstances constitute a manifest injustice, according to s137B Crimes (Administration Sentences) Act 1999 (NSW). If the Parole Authority does it this way, then the offender is not given an opportunity to be heard by making submissions.

If parole is granted, the offender will be released on parole. If parole is refused, the offender must generally wait another 12-months again.

 

Parole for Sentences of Imprisonment of Over 3 Years: Serious Offenders

A serious offender in this context is referred to as an offender who’s:

  • Serving a life sentence, or
  • Serving a sentence for which a non-parole period has been set despite the offence carries a maximum penalty of life imprisonment, or
  • Serving a sentence where the terms of the sentence are such that the offender won’t be eligible for release on parole until the offender first spends at least 12 years in custody, or
  • An offender who’s being managed as a serious offender, or
  • An offender who’s been convicted of murder, or
  • A commonwealth post sentence terrorism inmate, or
  • A NSW post sentence inmate, or
  • An offender who belongs to a class of persons prescribed by the regulations to be serious offenders.

The Parole Authority is required to consider releasing an offender on parole at least 60 days before the offender’s parole eligibility date.

The parole eligibility date is the end of the non-parole period portion of the imprisonment sentence.

The consideration of whether parole should be granted can be deferred by the Parole Authority to not less than 21 days before the end of the parole eligibility date if:

  • Consideration cannot be completed due to a pending report that is yet to be provided, or
  • There are other relevant matters that require further consideration.

If parole has initially been refused, an offender can next apply for parole at any time within 90 days before the anniversary of the offender’s parole eligibility date. After an offender makes an application like this, the Parole Authority must determine whether or not to grant parole within 60 days before the offender’s annual review date, according to section 143A Crimes (Administration Sentences) Act 1999 (NSW).

However, the Parole Authority can decline to consider an offender’s application for parole for up to three years at a time after it last considered granting parole.

The Parole Authority can consider granting parole without an offender making an application for parole. The Parole Authority can do this at any time after the offender first becomes eligible for release on parole on the basis on manifest injustice.

The Parole Authority does not have to but can examine the offender when considering parole. However an offender is not entitled to make submissions to the Parole Authority at any meeting held by the Parole Authority to determine parole.

If the Parole Authority intends on granting parole, it must inform its intention of doing so to any victims of the offender. This notice to the victims will include the intention to grant parole, that the victim may apply for reconsideration, that if such a reconsideration application is made by the victim, there will be a hearing, and that the Parole Authority will take into account any submissions by made by the victim when making a final decision.

If a reconsideration application by the victim is made and if the application requests a hearing, the Parole Authority is required to set a date for hearing and must give notice of the details of the hearing to the Commissioner, the offender, and the victim.

If the Parole Authority forms an intention to refuse parole, the Parole Authority must:

  • Give notice of its intention to refuse parole to the offender, and
  • Determine whether, if the offender requests this decision to be reconsidered, there will be a hearing.

The notice that the Parole Authority gives to the offender must include:

  • That the Parole Authorities intention is to refuse parole,
  • That the offender may apply for reconsideration,
  • That if the offender does apply for reconsideration, there will be a hearing,
  • That the offender may submit any submissions for the Parole Authority to take into account in its final decision.

If the offender applies for reconsideration, then the Parole Authority must give notice of the hearing details to the Commissioner, offender and any victim. Any notice to the victim will include:

  • That the Parole Authority intent not to make a parole order.
  • That an application has been made for reconsideration of this, and this will be determined in a hearing,
  • That, following reconsideration, the Parole Authority can change its intention to grant parole,
  • That the victim may make submissions at the hearing on whether parole should be granted or not,
  • That the offender may also make submissions at the hearing.

During the parole board hearing, the Parole Authority will decide whether or not to release the offender on parole or defer parole after reviewing all reports, documents and submissions from the offender and any other relevant person.

If the Parole Authority decides to defer parole, they may only do so once, and cannot defer for more than two months.

Where a Parole Authority provides a notice of intention to either grant or refuse parole, and where that intention is not opposed by either party, the Parole Authority must confirm its intention to either grant or refuse parole.

 

Supreme Court Application to Review Parole Authority Decision

An offender whose parole has been refused by the Parole Authority can apply to the Supreme Court to get the Supreme Court give take the matter back to the Parole Authority with specific directions. The application to the Supreme Court can only be made on the basis if the Parole Authorities decision was based on incorrect, misleading or irrelevant information, according to sections 155 and 156 Crimes (Administration Sentences) Act 1999 (NSW).

Questions on parole and sentences? Get in touch with our friendly team to speak to a criminal lawyers Sydney based today.

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