South Australian Current Acts South Australian Current Acts47—Duty of court to fix or extend non-parole periods
(1) Subject to this
section, when a court, on convicting a person of an offence, sentences the
person to imprisonment, the court must—
(a) if
the person is not subject to an existing non-parole period—fix a
non-parole period; or
(b) if
the person is subject to an existing non-parole period—review the
non-parole period and extend it by such period as the court thinks fit (but
not so that the period of extension exceeds the period of imprisonment that
the person becomes liable to serve by virtue of the sentence, or sentences,
imposed by the court); or
(c) if
the person is serving a minimum term imposed in respect of an offence under a
law of the Commonwealth or is liable to serve such a term on the expiry of an
existing non-parole period—fix a non-parole period in respect of the
sentence, or sentences, to be served on the expiry of that minimum term.
(2) If the sentence of
imprisonment is imposed for an offence committed during a period of release on
parole or conditional release from a previous sentence of imprisonment or
detention, the court, in fixing a non-parole period under
subsection (1)(a), must have regard to the total period of imprisonment
(or detention and imprisonment) that the person is, by virtue of the new
sentence and the balance of the previous sentence, liable to serve.
(3) If a prisoner is
serving a sentence of imprisonment but is not subject to an existing
non-parole period, the sentencing court may, subject to subsection (5),
fix a non-parole period, on application by the prisoner or the presiding
member of the Parole Board.
(4) The fact that the
prisoner has completed a non-parole period previously fixed in respect of the
same sentence of imprisonment, or that a court has previously declined to fix
a non-parole period in respect of that sentence, does not preclude an
application under subsection (3).
(5) The above
provisions are subject to the following qualifications:
(a) a
non-parole period may not be fixed—
(i)
in respect of a person who is liable to serve a total
period of imprisonment (or detention and imprisonment) of less than
12 months; or
(ii)
in respect of a person who is liable to serve a sentence
in the community while subject to an intensive correction order;
(b) if
fixing a non-parole period in respect of a person sentenced to life
imprisonment for an offence of murder, the mandatory minimum non-parole period
prescribed in respect of the offence is 20 years;
(c) if a
person who is subject to a sentence of life imprisonment is further sentenced
to imprisonment by the Magistrates Court or the Youth Court, the question of
whether a non-parole period should be fixed or extended must be referred to
the court by which the sentence of life imprisonment was imposed;
(d) if
fixing a non-parole period in respect of a person sentenced to imprisonment
for a serious offence against the person, the mandatory minimum non-parole
period prescribed in respect of the offence is four-fifths the length of the
sentence;
(e) a
court may, by order, decline to fix a non-parole period in respect of a person
sentenced to imprisonment if the court is of the opinion that it would be
inappropriate to fix such a period because of—
(i)
the gravity of the offence or the circumstances
surrounding the offence; or
(ii)
the criminal record of the person; or
(iii)
the behaviour of the person during any previous period of
release on parole or conditional release; or
(iv)
any other circumstance.
(a) a
court sentences a person under section 26 to the 1 penalty for a
number of offences; and
(b) a
mandatory minimum non-parole period is prescribed ("mandatory period ) in
respect of any of those offences,
any non-parole period to be fixed by the court under that section—
(c) must
be a period not less than the mandatory period prescribed in respect of the
relevant offence; and
(d) if
there is more than 1 such offence in respect of which a mandatory period
is prescribed—must be a period not less than the greater of any such
mandatory period; and
(e) must
be commenced or be taken to have commenced on the date specified by the court
(which may be the day on which the person was first taken into custody or a
later date specified by the court that occurs after the day on which the
defendant was taken into custody but before the day on which the person is
sentenced).
Note—
See PNJ v The Queen [2009] HCA 6.
(7) The DPP or the
presiding member of the Parole Board or the Training Centre Review Board (as
the case may require) may apply to the sentencing court for an order extending
a non-parole period fixed in respect of the sentence, or sentences, of a
prisoner, whether the non-parole period was fixed before or after the
commencement of this Act.
(8) The DPP must be
notified of an application made by the presiding member of the Parole Board or
Training Centre Review Board under this section.
(9) In fixing or
extending a non-parole period, the court—
(a)
must, if the person in respect of whom the non-parole period is to be fixed or
extended is in prison or a training centre serving a sentence of imprisonment
or detention, take into account the period already served; and
(b) in
the case of an application by the DPP or the presiding member of the
Parole Board or Training Centre Review Board under subsection (7), must
have regard to—
(i)
the likely behaviour of the person the subject of the
application should the person be released from custody; and
(ii)
the necessity (if any) to protect some other person or
persons generally should the person be released from custody; and
(iii)
the behaviour of the person while in custody (but only
insofar as it may assist the court to determine how the person is likely to
behave should the person be released); and
(iv)
such other matters as the court thinks relevant.
(10) This section does
not apply in relation to a person who is serving, or is liable to serve, a
sentence of indeterminate duration.
(11) The Parole Board
or the Training Centre Review Board (as the case may require) must, at the
request of a sentencing court, make a report to the court on any person in
respect of whom the court proposes to fix or extend a non-parole period.
(12) For the purposes
of this section—
(a) a
court that orders a suspended sentence of imprisonment to be carried into
effect will be taken to have sentenced the person to whom the order relates to
imprisonment; and
(b) the
person the subject of an application by the DPP or the presiding member of the
Parole Board or Training Centre Review Board under this section is a party to
the application and the DPP is a party to an application under
subsection (3); and
(c) a
reference to an "offence of murder" includes—
(i)
an offence of conspiracy to murder; and
(ii)
an offence of aiding, abetting, counselling or procuring
the commission of murder; and
(d) the
"sentencing court" means—
(i)
if the prisoner is subject to a single sentence of
imprisonment, or a number of sentences imposed by the 1 court or by a number
of courts of coordinate jurisdiction—that court, or a court of
coordinate jurisdiction; or
(ii)
if the prisoner is subject to a number of sentences of
imprisonment imposed by courts of different jurisdiction—the court of
the highest jurisdiction or a court whose jurisdiction is coordinate with the
jurisdiction of that court; and
(e) a
"serious offence against the person" means—
(i)
a major indictable offence (other than an
offence of murder) that results in the death of the victim or the victim
suffering total incapacity; or
(ii)
a conspiracy to commit an offence referred to in
subparagraph (i); or
(iii)
aiding, abetting, counselling or procuring the commission
of an offence referred to in subparagraph (i); and
(f) a
victim suffers "total incapacity" if the victim is permanently physically or
mentally incapable of independent function.