Adams, Carolyn --- "Federal Parole in Australia: Not a Carrot or a Stick in Sight" [2005] ALRCRefJl 3; (2005) 86 Australian Law Reform Commission Reform Journal 11

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Reform Issue 86 Winter 2005

This article appeared on pages 11 – 14 of the original journal.

Federal parole in Australia: Not a carrot or a stick in sight

By Carolyn Adams*

Parole arrangements occasionally cause great concern in the community, especially in relation to the early release of serious offenders such as Russell John Cox, sentenced to life imprisonment for a number of violent, armed offences and released on parole by the New South Wales Parole Board in December 2004.

Such concern stems in part from the perception that release on parole results in prisoners being set free before the end of their lawful sentence with inadequate consideration for community safety. The prisoner is seen to be the only person who benefits from the arrangement.

It is true that parole systems allow prisoners to be released from custody before the end of the maximum period of custody imposed by the sentencing court. But a prisoner is not released on parole before the end of the non-parole period, which is also set by the court. While there is a general perception in the community that release on parole cuts short an offender’s sentence, correctional authorities view the parole period as an important part of an offender’s sentence, served under supervision in the community. For example, s 76 of the Corrections Act 1986 (Vic) makes clear that a ‘person released on parole is to be regarded as being still under sentence’. This period of supervision is intended to assist the offender in reintegrating into the community and to reduce the risk of re-offending. On this basis, it is seen to be of benefit to the community, as well as the offender.

Federal parole system

For federal prisoners in Australia—that is, prisoners convicted of crimes against Commonwealth law—certain conditions are always attached to release on parole. These are that the offender must be of good behaviour and not break the law during the parole period.¹ In addition, a wide range of other conditions may be imposed, including supervision by a parole officer. The offender must agree to abide by all the conditions imposed in the parole order before he or she is released, and breach of any of the conditions may result in the offender being returned to custody.

The federal parole system in Australia is different in a number of significant ways to the parole systems that apply to state and territory prisoners. One of these differences is that for most federal offenders parole is granted automatically at the end of the non-parole period.

The federal system operates on a number of different levels depending on the term of imprisonment imposed by the sentencing court. Where a federal offender has been sentenced to three years’ imprisonment or less, the court is required to make a recognizance release order rather than set a non-parole period. For sentences of six months or less, the court may make a recognizance release order but is not required to do so. Under a recognizance release order the prisoner is released immediately, or after serving a period of imprisonment termed the ‘pre-release period’, which is set by the court. The offender is released on the basis that he or she provides a security, or bond, which may be forfeited if the offender fails to comply with any of the conditions set by the court.

Where a federal offender has been sentenced to more than three years’ imprisonment, the court may make a recognizance release order or may set a non-parole period. Where the court sets a non-parole period, the decision to release the offender and the conditions to be imposed on the offender once released are placed in the hands of the executive. At the Commonwealth level, this power is formally exercised by the Attorney-General, although the authority to grant or refuse parole and to set conditions on parole has been delegated to senior officers of the Attorney-General’s Department (AGD). Because such parole decisions are made by the executive rather than the courts, a degree of administrative discretion is introduced into the process, potentially giving rise to some uncertainty as to the exact release date and conditions.

In the existing federal system, however, this discretion has been significantly limited by legislation. The Crimes Act 1914 (Cth) provides that where a federal offender has been sentenced to more than three years and less than 10 years’ imprisonment, the Attorney-General must grant parole at the end of the non-parole period. The vast majority of federal offenders are sentenced to less than 10 years and so are eligible for automatic release under a recognizance release order or on parole.

A real discretion does arise in relation to federal offenders sentenced to 10 years or more. The Attorney-General—or more usually the departmental delegate—considers parole and prison reports provided by the state and territory correctional services agencies in order to assess whether it is appropriate to release a federal prisoner on parole. If a decision is made that a prisoner is not to be released at the end of the non-parole period, the decision must include a statement of reasons and, if the decision maker proposes to reconsider the prisoner’s release on parole again, must indicate when the decision maker proposes to reconsider the matter.

State and territory systems

The systems at the state and territory level differ from the federal system and between themselves. Automatic parole is available in Western Australia, New South Wales and South Australia. In Western Australia prisoners serving less than 12 months must generally be released on parole after serving one half of their sentence.² In New South Wales, offenders sentenced to three years or less will be released automatically at the end of their non-parole period, provided one was set at the time of sentence.³ In South Australia that period is five years.⁴

While the use of automatic parole in these states appears to be similar to the federal system, it is important to note that the vast majority of sentences for federal offences falls within the automatic parole period. Automatic parole has a more limited operation in those states that use it. Statistics suggest that, in 2001, about 12% of prisoners fell within the automatic parole period in Western Australia and 50% in South Australia.⁵ New South Wales fell somewhere between these two figures. In the other states and territories, the decision to release a prisoner on parole is always a discretionary one, made in most cases by a parole authority but in some cases by the relevant minister or state governor.

The parole ‘carrot’

There is an ongoing debate about the utility of discretionary parole. The system is justified on the basis that, because early release is dependent on good behaviour, it contributes to maintaining order in prisons; that the potential for early release can be used as an incentive for more active involvement in rehabilitation programs to address offending behaviour; and that it protects the public to some extent because only prisoners who have demonstrated that they are ready to be reintegrated into the community are released on parole.

These elements are made express in some jurisdictions. For example, s 16 of the Sentence Administration Act 2003 (WA) sets out a list of factors that must be considered by the Parole Board in making parole decisions. The factors include the behaviour of the prisoner while in custody; whether the prisoner participated in available programs while in custody and the prisoner’s performance on such programs; and the degree of risk that the release of the prisoner would present to the community.

However, not everyone agrees that the parole ‘carrot’ leads to genuine rehabilitation. Advocates of automatic parole have argued that the use of discretionary parole merely encourages inauthentic or ‘play-acted’ participation in rehabilitative programs.⁶ It has also been argued that discretionary parole decisions by the executive at the end of the non-parole period allow too much indeterminacy in the sentencing process, and that it is judges, not administrators, who are in the best position to decide how long an offender should spend in prison and how long he or she should spend under supervision in the community.⁷

These and other arguments have resulted in a significant move away from the use of discretionary parole in the United States, where seven states have completely abolished discretionary parole and 14 others allow only very limited discretion. In 1980, more than 55% of all releases from US state prisons were the result of a discretionary decision by a paroling authority. In 1999, only about 25% of such releases were made by paroling authorities.⁸ In most of these jurisdictions paroled offenders are subject to supervision in the community during the last few years of their sentences. However, the period an offender is to serve on parole is fixed by a court at the time of sentencing, rather than by a parole authority at the time of release.

Discretionary parole continues to be the dominant system at the state and territory level in Australia. The New South Wales Law Reform Commission examined the issue in its 1996 report, Sentencing.⁹ The Commission concluded that a specialist independent body, with judicial leadership and broad community input was better placed than the judiciary to make parole decisions where the public interest and public safety were significant issues. The Commission noted that, in NSW, parole was automatic in relation to sentences of three years or less and that this was the maximum sentence that could be imposed by magistrates in Local Courts. The Commission accepted that release should be automatic for prisoners serving relatively short sentences. There were a number of reasons put forward to support this position including administrative convenience; more efficient use of limited resources; and the fact that such offenders were less likely to constitute a threat to the community’s safety.

The Commission was also of the view that the threshold of three years was appropriate and should not be lowered. This was on the basis that:

‘There must be time for new considerations to emerge on which a decision can be made. This includes participation in appropriate treatment and educational programs. There must be time to allow for a thorough assessment of the prisoner’s suitability for release and the conditions under which it should be made, including an evaluation of the effectiveness of any programs undertaken. There should also be a period on parole of sufficient length both to permit re-integration into the community to occur with the necessary support and supervision, and the possibility of return to prison to operate as an effective deterrent to re-offending.’¹⁰

The ALRC inquiry

The Australian Law Reform Commission (ALRC) is conducting an inquiry into the sentencing of federal offenders. As part of that inquiry, the ALRC is re-examining the question of automatic parole for federal offenders. In a previous report on sentencing the ALRC recommended that parole should be granted automatically at the end of the non-parole period in relation to all sentences except life sentences.¹¹ At the time of that report, the application of remissions under state and territory law to both head sentences and non-parole periods was causing confusion and disquiet because of the disparity between the sentences imposed by the court and the sentences actually being served. The ALRC’s recommendation was based on the perceived need for greater ‘truth in sentencing’. Given the limited use now made of remissions in all jurisdictions and the fact that the federal system is significantly out of step with the states and territories, the ALRC is of the view that it is timely to reconsider this issue in the context of the current inquiry.

* Carolyn Adams is a Senior Legal Officer at the Australian Law Reform Commission.

This article was prepared with the assistance of Oliver Jones, intern.

Endnotes

1. Crimes Act 1914 (Cth) ss 19AN(1)(a), 19AP(7)(a).

2. Sentence Administration Act 2003 (WA) s 22.

3. Crimes (Sentencing Procedure) Act 1999 (NSW) s 50.

4. Correctional Services Act 1982 (SA) s 66 and 67.

5. Australian Bureau of Statistics, Year Book Australia 2003 (2003), Table 11.31.

6. K Reitz, ‘Questioning the Conventional Wisdom of Parole Release Authority’ in M Tonry (ed) The Future of Imprisonment (2004) 199, 200.

7. P Burke, A Handbook for New Parole Board Members (2003) The Association of Paroling Authorities International, 5.

8. Ibid, 2.

9. New South Wales Law Reform Commission, Sentencing, Report 79 (1996).

10. Ibid, [11.14].

11. Australian Law Reform Commission, Sentencing, ALRC 44 (1988), Recs 28–29.