Parole for eligible Aboriginal and Torres Strait Islander prisoners

5.15     When a person is sentenced to a term of imprisonment above a prescribed length,[28] a court generally imposes a non-parole period (the minimum period that the offender must spend in prison) as well as a head sentence (the maximum period that the offender can spend under sentence).[29] Upon the expiration of the non-parole period, the offender may be conditionally released as a parolee, subject to parole conditions as set by the parole authority. Parolees are supervised by community corrections, and must follow their reasonable directions. Breach of parole may result in a return to prison.

5.16     Parole is not release. The Review of the Parole System of Victoria observed there to be a ‘lack of awareness generally that parole represents only conditional release’, and reiterated that ‘a parolee remains under sentence while on parole’.[30] As was noted by the NSW Law Reform Commission (NSWLRC):

an offender continues to serve his or her term of imprisonment while on parole: parole is an integral part of the original sentence…. [P]arole is not a discount or leniency. Instead it is a component of the original sentence. The offender remains subject to conditions and restriction of liberty, and may be returned to prison if parole is revoked.[31]

5.17     The setting of a parole date is seen to incentivise good behaviour and rehabilitation while an offender is in prison, and parole is seen to facilitate prisoner reintegration back into society.[32]

5.18     Parole involves case management to provide suitable accommodation, make referrals to required services, and help parolees manage financial, personal and other problems. Research published by the Australian Institute of Criminology in 2014 suggests that prisoners who receive parole have significantly lower rates of recidivism or commit less serious offences than those released unsupervised; and that parole is most effective when it involves active supervision that is rehabilitation focused.[33]

5.19     As observed in the Review of the Parole System of Victoria, parole benefits not just the offender, but also the wider community, by ‘recognising that the wider community benefits from the rehabilitation of offenders’ through a decrease in recidivism and crime rates.[34]

5.20     The ALRC has heard that eligible Aboriginal and Torres Strait Islander prisoners rarely apply for parole at the end of their non-parole period. Stakeholders have articulated two key reasons. First, eligible Aboriginal and Torres Strait Islander prisoners may believe that they are unlikely to be granted parole by the parole authority. Second, in jurisdictions that do not count time served on parole in the case of revocation, being granted parole creates too great a risk of increased prison time.

5.21     The following proposals aim to address these two barriers and encourage eligible Aboriginal and Torres Strait Islanders to apply for parole, which would provide supported transition from prison to community life.

Eligible Aboriginal and Torres Strait Islander people might not apply for parole

5.22     Stakeholders have told the ALRC that many Aboriginal and Torres Strait Islander prisoners who are eligible for parole instead serve out their entire head sentence in prison. The result is that this cohort can spend a greater proportion of their sentence in prison than is required under the relevant legislative schemes; that correctional facilities are put under additional strain due to the increased prison population; and that these Aboriginal and Torres Strait Islander prisoners are then released into the community without supervision at the end of their head sentence.

5.23     This issue was highlighted in the Prison to Work report, which observed that large numbers of Aboriginal and Torres Strait Islander prisoners either did not apply for or receive parole. This was particularly the case in jurisdictions with high Aboriginal and Torres Strait Islander prison populations. For instance, in WA it was reported that 80% of Aboriginal and Torres Strait Islander prisoners in 2013–14 were not released on parole.[35] In 2014–15, 53% of prisoners in the NT served their full sentence in prison (meaning they were released unsupervised).[36]

5.24     The Evaluation of the Aboriginal Justice Agreement—Phase 2: Final Report, revealed that, in Victoria, 67% of Aboriginal and Torres Strait Islander offenders released from prison were not released on parole in 2011.[37]

Discretionary and court ordered parole

Proposal 5–3              A statutory regime of automatic court ordered parole should apply in all states and territories.

Question 5–3              A statutory regime of automatic court ordered parole applies in NSW, Queensland and SA. What are the best practice elements of such schemes?

5.25     Court ordered parole permits automatic release on parole on the date set by the court without application to the parole authority at the end of the non-parole period. Under court ordered parole, when a person is sentenced to a term of imprisonment for less than three years,[38] the parole date set by the court at the time of sentencing is the ‘automatic’ release date.[39] The court may have full discretion in setting the parole date, or it may be constrained by relevant sentencing legislation requiring the setting of a non-parole period.[40] NSW, Queensland, and SA have legislative frameworks for court ordered parole.[41]

5.26     Figures released in 2016 suggest that in most states and territories, between 30% and 50% of Aboriginal and Torres Strait Islander peoples sentenced to a term of imprisonment received head sentences of between six months and two years.[42] In Tasmania and the NT, the figures are 57% and 61% respectively. In NSW, approximately 40% of all prison terms were between six months and two years for Aboriginal and Torres Strait Islander offenders.

5.27     Court ordered parole does not operate in the ACT, NT, Tasmania, WA and Victoria.[43] In these jurisdictions, all offenders who are sentenced to parole-eligible sentences must apply for parole to the relevant parole authority prior to the expiration of the non-parole period, regardless of the length of the head sentence. This system of parole is termed ‘discretionary parole’.[44]

5.28     There are advantages to court ordered parole. Court ordered parole ensures that greater numbers of low-level offenders are released on parole, limiting the number of offenders who are released to the community unsupervised.[45] There are also limitations. Primarily, court ordered parole may affect one of the key functions of parole—the incentive for good behaviour. The NSWLRC notes:

Automatic parole … ensures that offenders (who are not sentenced to a fixed term) are supervised for a period and have the opportunity to attempt to reduce their recidivism risk. However, it cannot provide an incentive for good behaviour in custody or for offenders to participate in programs unless there is a means to revoke or override automatic parole for some offenders on this basis.[46]

Means to revoke or override automatic parole

5.29     An order for court ordered parole does not guarantee release on the prescribed date. There are means to revoke the non-parole period when ‘exceptional circumstances’ arise after sentencing, where the prisoner would represent a ‘sufficiently significant danger’ to the community if released on parole such that the grant of parole ought not be made.[47]

5.30     In NSW, revocations for court ordered parole are uncommon.[48] The Crimes (Administration of Sentences) Regulation 2014 (NSW) sets out the circumstances in which the State Parole Authority (SPA) can revoke an offender’s court ordered parole while they are still in custody:

  • where the offender requests revocation;

  • where the SPA decides that the offender is unable to adapt to normal lawful community life; or

  • where the SPA decides that satisfactory post-release accommodation or plans have not been made or cannot be made.[49]

5.31     The ALRC recognises that corrective services and parole authorities are well-placed to observe and make decisions about the suitability of prisoners for release on parole. The length of time that elapses between the time of sentence and the end of a non-parole period can be substantial, and there are many reasons why a person, once deemed suitable for parole, can present a risk to the community by the time the non-parole period has been served.

5.32     The 2016 Queensland Parole System Review: Final Report provided a summary outlining the importance of including a pre-release override mechanism for automatic parole:

Firstly, it operates to safeguard community safety by allowing an offender’s parole order to be suspended or cancelled on limited grounds before they are released to the community. This approach allows QCS [Queensland Corrective Services] to consider the offender’s behaviour close to release and, where appropriate, make a recommendation that the offender’s parole be amended, suspended or cancelled before they are released into the community. Secondly, the ability to suspend or cancel a parole order because of conduct in custody would, to some degree, aid in the maintenance of prison discipline by providing an offender with an incentive to behave while in custody. Finally, the system retains certainty for the Court, and for the community, as to the length of time in custody that will actually be served by a prisoner unless the offender, by his or her conduct while in prison, demonstrates an unacceptable risk to the community close to his or her release.[50]

5.33     Of the court ordered parole jurisdictions, only NSW’s override mechanism has a statutory basis.[51] Queensland relies on a Court of Appeal decision as the basis for its safeguard powers.[52] SA appears not to have a pre-release safeguard at all, though prisoners must accept any parole conditions set before release is granted.[53]

Accommodation as an obstacle to court ordered parole

5.34     Court ordered parole may be revoked before release due to unsuitable post-release accommodation, or because plans in relation to post-release accommodation have not, or cannot, be made. This is a major hurdle for many Aboriginal and Torres Strait Islander prisoners.

5.35     Housing issues—particularly homelessness, inadequate housing, and over-crowding—tend to disproportionately affect Aboriginal and Torres Strait Islander peoples.[54] The NSWLRC summarised the issue:

Previous Australian research has found that between 7% and 11% of NSW prisoners were living in primary homelessness before their entry into custody. The term ‘primary homelessness’ is generally used to describe the circumstances of people living on the street, sleeping rough or living in cars and squats. People with transient living arrangements—living in refuges, shelters or couch surfing—are described as living in secondary homelessness…. Corrective Services NSW reports that, in 2011–12, 5% of receptions in NSW prisons were living in primary homelessness prior to their entry into custody and over 50% were living in secondary homelessness. For those offenders who did have stable housing before entering custody, imprisonment can often mean that such housing is no longer available when the offender is approaching the parole date. Offenders who lived in mortgaged properties or private rental properties are likely to have lost their housing due to inability to pay while in custody. Some offenders will have lost access to their previous residence due to relationship or family breakdown. Offenders who were previously accommodated in public housing will have lost their tenancy after being in custody for more than three months.[55]

5.36     The NSWLRC further emphasised that:

One of the biggest issues … has been the difficulty that offenders with court based parole orders can have in arranging suitable post-release accommodation. Clause 222(1)(c) of the [Crimes (Administration of Sentences)] Regulation gives SPA the power to revoke a court based parole order before an offender is released if satisfactory accommodation or post-release arrangements have not been made or cannot be made. A lack of suitable accommodation is the main reason for SPA revoking parole prior to release.[56]

5.37     The ALRC welcomes submissions relating to the benefits and disadvantages of court ordered parole for Aboriginal and Torres Strait Islander offenders.

Counting time spent on parole when parole revoked

Proposal 5–4              Parole revocation schemes should be amended to abolish requirements for the time spent on parole to be served again in prison if parole is revoked.

5.38     Stakeholders in this Inquiry have drawn attention to the operation of some parole revocation schemes that require time served on parole to be served again in prison if parole is revoked.

5.39     The decision to return a parolee to prison usually sits with the parole authority, and not all breaches of parole will result in a return to prison. Where breaches of parole result in a return to prison, the length of the remaining prison term can be affected depending on the parole revocation scheme operating. There are two options:

  • Option 1: Time spent on parole, beginning on the date of release on parole and ending on the date of breach (or date of revocation), counts towards the head sentence (as in NSW, Queensland, SA, and WA).

  • Option 2: Time spent on parole, beginning on the date of release on parole and ending on the date of breach (or date of revocation), does not count towards the head sentence, and must be served again in prison upon the parolee’s return (as in the ACT, the NT, Tasmania and Victoria).

5.40     Option 2 has potential adverse consequences. It extends the time a person serves under sentence[57] and it operates as a disincentive for eligible people to apply for parole, increasing the prison population and the number of people released from prison without supervision.

5.41     Standard conditions of parole can be difficult for Aboriginal and Torres Strait Islander people to comply with, especially where conditions of release clash with cultural obligations and prevent reconnection with family and community.[58] Factors that particularly affect the ability of Aboriginal and Torres Strait Islander parolees to comply with conditions, include: remoteness; substance abuse issues; mental health issues; poor literacy skills; lack of access to appropriate programs; difficulty in obtaining suitable long-term housing; difficulty in finding stable employment; and issues around family violence, particularly for women.[59]

5.42     The ALRC welcomes submissions on whether or not a nationally consistent approach—modelled on the NSW, Queensland, SA, and WA approaches—is necessary or desirable.