Contributors Authors: Geoff Fisher, Donald Ritchie, Nina Hudson Sentencing Advisory Council Chair: Arie Freiberg AM Deputy-Chair: Lisa Ward Council Members: Carmel Arthur, Hugh de Kretser, Fiona Dowsley, Helen Fatouros, David Grace QC, John Griffin PSM, Brendan Kissane QC*, Sherril Handley, Shane Patton, Barbara Rozenes, Geoff Wilkinson OAM, Kornelia Zimmer *Commenced 1 December 2015. Did not participate in any deliberations regarding this report. Chief Executive Officer: Cynthia Marwood Acknowledgments The Council would like to thank Court Services Victoria for the provision of data used in this report. The Council would also like to thank Katharine Brown for her assistance in preparing this report.
Separation of judicial and administrative roles Parole is therefore a product of both judicial and administrative decision-making; however, there is a clear delineation between the two, such that a ‘sentencer cannot direct the authority to release an offender on parole, nor can the authority compel an eligible offender to accept an offer of release’. Further, a parole cannot order parole before the non-parole period has elapsed, nor discharge an offender from a sentence earlier than the date of completion for the sentence while the offender is under parole. In formulating a sentence, a court cannot have regard to parole board policies and cannot speculate about future possible decisions of a parole board to grant or cancel parole. The clear separation between the powers of the court and those of the parole board is evident from the majority judgment of the High Court in Power v The Queen: To interfere with [a] sentence is not within the authority of the paroling authority. Its authority is to release the prisoner conditionally from confinement in accordance with the sentence imposed upon him. The sentence stands and during its term the prisoner is simply released upon conditional parole. Indeed, we think it is a misnomer to refer to a minimum sentence and a maximum sentence. In truth there is but one sentence, that imposed by the judge, which cannot be altered by the paroling authority. A fundamental tenet of parole is that the offender on parole is still deemed to be under the original custodial sentence until the ‘parole period so elapses or until the prisoner is otherwise discharged from the prison sentence’. However, once the parole period has elapsed, the prisoner has served the sentence and is wholly discharged. Corrections Victoria is responsible for supervising offenders in the parole system. Community Correctional Services staff monitor compliance with conditions, facilitate access to and deliver programs, and report to the Adult Parole Board on an offender’s progress. This report considers parole in relation to sentences imposed by the courts, rather than the administration of those sentences by Corrections Victoria. The key research questions in this report seek to examine trends regarding the way in which sentences involving parole are imposed, rather than examining questions relating to the administration of parole, such as the amount of time offenders spend in custody after the expiry of their non-parole period, or the rate at which offenders breach parole.
Abolition of partially suspended sentences and the use of community correction orders Partially suspended sentences were abolished alongside wholly suspended sentences. Partially suspended sentences allowed an offender to serve a term of imprisonment in custody (the unsuspended term) followed by a term of imprisonment served in the community (the partially suspended term). The period of imprisonment served in custody was a straight sentence of imprisonment, that is, the court did not fix a period, and the offender was released without supervision at the completion of the unsuspended term (on the condition that the offender did not reoffend). It has been observed that partially suspended sentences were frequently imposed where an offender had spent a substantial amount of time in pre-sentence detention, although this cannot be tested using the available data. Although conditions could not be imposed on the partially suspended term, the offender was still under sentence. If the offender reoffended, he or she faced the prospect of having to serve the partially suspended term in custody. A possible contributing factor to the increased use of combined sentences of imprisonment with a CCO is that they are used similarly, in place of partially suspended sentences where an offender has served a substantial amount of time in detention. The pre-sentence detention is accounted for in the imprisonment sentence, and the nature of the combined sentence means that a court can now place appropriate conditions on the CCO (such as monitoring and supervision), which was not possible under a partially suspended sentence. Summary The reduction in the use of non-parole periods in the higher courts and the Magistrates’ in 2014–15 was driven by a combination of factors. First, legislative changes allowed the CCO to be combined with longer terms of imprisonment, expressly permitting the court to consider imposing a CCO where a wholly suspended sentence would previously have been appropriate. Second, an environment created by changes to the administration of parole and guidance to the courts has placed greater emphasis on CCOs. This context is likely to have prompted some courts to view the certainty and flexibility of a CCO, when