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Release on Parole or Licence

The content on this page was last reviewed on 11 October 2021.

1. Overview

State Acts governing the release of prisoners on parole or licence do not apply to federal offenders. Federal offenders are, rather, subject to provisions in the Crimes Act 1914 (Cth) found in ss 19AL-19AZB. Decisions about release on parole or licence of federal offenders are made by order of the Commonwealth Attorney-General, as there is no parole board at the federal level: see below 2. Parole Decisions.

A federal offender may be released on parole by the Attorney-General at the end of the fixed non-parole period: s 19AL. Federal offenders may also be released on licence at any time during their sentence, if exceptional circumstances exist to justify the Attorney-General granting a licence: s 19AP.

The interaction of the Commonwealth and state or territory legislation in this area is complex. Federal offenders may be concurrently serving state or territory sentences and federal sentences. Where this is the case, the Crimes Act 1914 (Cth) prescribes certain procedures to determine the date of release on parole.

1.2 Purposes of parole

Section 19AKA sets out the purposes of parole:

(a) the protection of the community;

(b) the rehabilitation of the offender;

(c) the reintegration of the offender into the community.

Section 19AKA was introduced by Schedule 7 of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). The Explanatory Memorandum states that the purpose of the section is to ‘provide guidance in ensuring that parole conditions are consistent with the purposes of parole, for use in making decisions on release on parole, and when considering breaches of parole conditions’. 1

2. Parole decisions

The power to make parole decisions in relation to federal offenders lies with the Attorney-General. Decisions about parole, and the setting of conditions of release, may also be made by the Minister for Justice, 2 or delegated to senior officers of the Attorney-General’s Department. 3

Under s 19AL, a federal offender may be released on parole at the end of the fixed non-parole period. In making a parole decision under s 19AL in relation to a person, the Attorney-General may have regard to the matters listed in s 19ALA(1) that are known to the Attorney-General and relevant to the decision. This is not exhaustive: s 19ALA(2).

Section 19ALA

(1)  In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision:

  • (a)  the risk to the community of releasing the person on parole;
  • (b)  the person’s conduct while serving his or her sentence;
  • (c)  whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;
  • (d)  the likely effect on the victim, or victim’s family, of releasing the person on parole;
  • (e)  the nature and circumstances of the offence to which the person’s sentence relates;
  • (f)  any comments made by the sentencing court;
  • (g)  the person’s criminal history;
  • (h)  any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;
  • (i)  the behaviour of the person when subject to any previous parole order or licence;
  • (j)  the likelihood that the person will comply with the conditions of the parole order;
  • (k)  whether releasing the person on parole is likely to assist the person to adjust to lawful community life;
  • (l)  whether the length of the parole period is sufficient to achieve the purposes of parole;
  • (m)  any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.

The purpose of introducing s 19ALA was to:

  • support procedural fairness of decisions;
  • support production of reasons for decisions;
  • inform the community at large of the roles and responsibilities of parole authorities; and
  • promote consistent and transparent parole-related outcomes. 4

2.1 Parole Orders for Terrorism Offenders

The Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019 (Cth) inserted s 19ALB into the Crimes Act 1914 (Cth).

Section 19ALB(1) states that the Attorney-General must not make a parole order in relation to a person covered by ss 19ALB(2) unless the Attorney-General is satisfied that exceptional circumstances exist to justify making a parole order.

The persons covered by subsection 19ALB(2) are:

  • A person who has been convicted of a terrorism offence, including a person currently serving a sentence for a terrorism offence; s 19ALB(2)(a)
  • A person who is subject to a control order within the meaning of Part 5.3 of the Criminal Code (terrorism); s 19ALB(2)(b)
  • A person who the Attorney-General is satisfied has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of Part 5.3; s 19ALB(2)(c).

Section 19ALB(3) requires the Attorney-General to have regard to (a) the protection of the community as the paramount consideration; and (b) the best interests of the person as a primary consideration, when determining if exceptional circumstances exist to justify making a parole order in relation to a person who is under 18 years of age, without limiting the matters the Attorney-General may have regard to.

In Lodhi v Attorney-General [2020] FCA 1383 Bromwich J stated at [19] that:

There is no need to go beyond the text of s 19ALB(1), which is clear enough. In light of Re BoltonSaeed and JS, and assisted by Hasim, upon a plain and literal reading of the words used by Parliament, s 19ALB(1) is not correctly characterised as creating a presumption against a parole order being made. That is, quite simply, because no language of, or akin to, a presumption is present. In those circumstances, it is appropriate to disregard the references to that effect in the revised explanatory memorandum and second reading speech and instead apply the reasoning in Hasim outlined above. That is, the effect of s 19ALB(1) is, as expressly provided, to create a statutory prohibition on the making of a parole order unless the Attorney-General is satisfied that exceptional circumstances exist to justify doing so.

In referring to the impact of s 19ALB on the sentencing process, Champion J noted in R v Ali [2020] VSC 316 at [209] that:

Counsel also noted in further written submissions that since your plea of guilty, s 19ALB was inserted into the Crimes Act 1914 (Cth) meaning that you will need to meet a threshold of exceptional circumstances in order to be granted parole.

I am not permitted to engage in speculation about any future grant of parole and I accept that I should proceed on the basis that you may be required to serve the whole of your sentence before being released from custody.

2.2. Procedural Fairness

The s 19AL power must be exercised with procedural fairness: Duxerty v Minister for Justice and Customs [2002] FCA 1518, [22]. 5

In Butler v Queensland Community Corrections Board [2001] QCA 323, the Supreme Court of Queensland Court of Appeal stated in relation to decisions about parole at the state level at [19]:

Procedural fairness in respect of a parole application requires that an applicant’s attention be drawn to the main issues or factors militating against success, so that an adequate opportunity is afforded to deal with them.

Butler was cited with approval by the Federal Court of Australia in Duxerty v Minister for Justice and Customs [2002] FCA 1518, [22].

In Westlake v Attorney-General [2017] FCA 1058, Bromwich J stated at [40] that:

The principle of procedural fairness (or natural justice) requires no more than an applicant for parole being aware, or being made aware, of the main factors or issues that would (or could) militate against the grant of parole.

However, in Khazaal v Attorney-General [2020] FCA 448 Wigney J referred to the statement of Bromwich J in Westlake and stated at [62] that:

That statement of principle is too narrow. It is certainly necessary that an applicant for parole be made aware of the main factors or issues that would or could militate against the grant of parole. But it is wrong to say that procedural fairness requires no more than that in all cases involving parole. In some cases, more will be required. In some cases, for example, procedural fairness will require the applicant for parole to be advised not only of the “main factors or issues”, but also specific adverse information that is credible, relevant and significant to the decision. Nothing in the statutory scheme concerning the making of parole orders under the Crimes Act suggests that a narrow or confined approach should be taken to procedural fairness in that context, or that the general principles concerning procedural fairness do not apply to parole decisions with full force.

2.3 All federal parole decisions are discretionary

The Attorney-General must, before the end of a non-parole period imposed on a federal offender, either make or refuse to make a parole order: s 19AL(1).

The application of s 19AL(1) to offenders is affected by s 19AL(5) if the offender will be serving a state or territory sentence at the end of the non-parole period: see below 2.4 Offenders serving state or territory sentences.

If the Attorney-General refuses to make a parole order for a person, they must give the person a written notice, within 14 days after the refusal that:

  • informs the person of the refusal: s 19AL(2)(a)(i); and
  • includes a statement of reasons for the refusal: s 19AL(2)(a)(ii); and
  • sets out the effect of paragraph (b) of s 19AL(2), which requires the Attorney-General to reconsider the making of a parole order for the person, and either make, or refuse to make such an order, within 12 months after the refusal. s 19AL(2)(a)(iii)

The parole order must be in writing, and specify whether or not the person is to be released subject to supervision: s 19AL(3)(a)-(b). If it is proposed that the supervision period should end before the end of the person’s parole period, the parole order must specify the day on which the supervision ends: s 19AL(3)(c).

2.4 Offenders serving state or territory sentences

The end of the non-parole period for a federal offence or offences may occur while the offender is still serving a sentence for a state or territory offence or offences. Section 19AL(5) provides that if an offender will be serving a state or territory sentence on the day after the end of the non-parole period for the federal sentence, the requirement under s 19AL(1) to make, or refuse to make, a parole order does not apply in certain circumstances. These are:

Section 19AL

(5)  The Attorney-General is not required to make, or to refuse to make, a parole order under subsection (1) or paragraph (2)(b) if:

  • (a)  the State or Territory sentence is a life sentence for which a non-parole period has not been fixed; or
  • (b)  the State or Territory sentence ends after the end of the last of the federal sentences to end; or
  • (c)  the non-parole period for the State or Territory sentence ends after the end of the federal non-parole period; or
  • (d)  the State or Territory sentence ends after the end of the federal non-parole period.

(6)  However, the Attorney-General must either make, or refuse to make, a parole order before:

  • (a)  if paragraph (5)(c) applies (and paragraphs (5)(a) and (b) do not)—the end of the non-parole period for the State or Territory sentence; or
  • (b)  if paragraph (5)(d) applies (and paragraphs (5)(a), (b) and (c) do not)—the person’s expected release from prison for the State or Territory offence.

Note: The effect of subsections (4) to (6) and subsection 19AM(2) is that a parole order may sometimes still be made for a person while the person is serving a State or Territory sentence, but the person will not be released in accordance with the parole order until the person is released from prison for the State or Territory sentence.

See further below: 2.5.2 Date of release for offenders serving state or territory sentences.

2.5 Date of release on parole

A person must be released from prison on parole in accordance with a parole order on whichever of the following days is applicable:

1. For a parole order made before the end of the non-parole period, the earlier of the following days: s 19AM(1)(a)

  •  the last day of the non-parole period; or
  • an earlier day (if any) specified in the parole order, not being earlier than 30 days before the end of the non-parole period: Section 19AL(3A).

2. For a parole order made after the end of the non-parole period, the later of the following days: s 19AM(1)(b)

  • the day after the parole order is made; or
  • a later day (if any) specified in the parole order, not being later than 30 days after the order is made

A person is not to be released from prison on parole unless, before, on or after the release day, the person certifies the parole order (or a copy of the order) that he or she accepts the conditions to which the order is subject: s 19AM(3).

A person released on parole must comply with any conditions of the parole order during the parole period.

2.5.1 Early release on parole

Section 19AL(3A) provides that the Attorney-General may specify that a person is to be released up to 30 days earlier than the end of the non-parole period. Section 19AL(3A) was introduced by Schedule 7 of the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). The Explanatory Memorandum states:

New subsection 19AL(3A) explains that release on parole up to 30 days early is only available when the Attorney-General considers that in all the circumstances it is appropriate to do so. Appropriate circumstances may include situations where a specific event directly related to the prisoner’s rehabilitation is scheduled to occur in the 30 days before the expiry of the prisoner’s non-parole period. For example, it may be appropriate to release a prisoner early where the prisoner is required to attend classes for a course of study integral to the prisoner’s post-release plans. A prisoner who is eligible for release on parole between Christmas and New Year may be granted early parole to enable them to report to the parole service before the Christmas holiday period. 6

State or territory laws providing for early release on parole may also apply to federal offenders under s 19AZD(2). See further Pre-Release Schemes.

2.5.2 Date of release for federal offenders serving state or territory sentences

Section 19AM(2) applies to offenders who are due for federal parole but are also serving state or territory sentences. If a person is imprisoned for a state or territory offence on the day he or she would otherwise be eligible for release on parole under s 19AM(1), the person must be released from prison on federal parole in accordance with the parole order on the same day he or she is released from prison, on parole or otherwise, for the state or territory offence: s 19AM(2).

The effect of s 19AM(2) can be that a federal prisoner may have served a complete non-parole period and be subject to an order of release on parole by the Attorney-General in relation to that federal sentence, but will remain in custody until released from prison for the state/territory sentence: s 19AL.

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3. Release on licence

Any person serving a federal sentence may, at the discretion of the Attorney-General, be released from prison on licence whether or not a non-parole period has been fixed or a recognizance release order made: s 19AP(1).

A prisoner, or a person acting on the prisoner’s behalf, may apply to the Attorney-General in writing for release on licence, stating the exceptional circumstances which exist to justify the grant of the licence: s 19AP(2)-(3). The Attorney-General must not release a prisoner on licence unless the Attorney- General is satisfied that exceptional circumstances exist to justify the release: s 19AP(4).The licence must specify whether or not the person is to be released subject to supervision: s 19AP(6)(b). If it is proposed that the supervision period should end before the end of the person’s licence period, the licence must specify the day on which the supervision ends: s 19AP(6)(c).

A licence in relation to a person subject to a federal life sentence must specify the day on which the licence period ends. The day specified cannot be any earlier than 5 years after the person is released on licence: s 19AP(6).

A licence directing that the offender be released from prison is sufficient authority for the release: s 19AP(10).

The Attorney-General is not required to consider an application for release on licence if a previous application has been made within the past year in respect of the offender: s 19AP(5).

Without limiting the matters to which the Attorney-General may have regard for the purposes of s 19AP(4), the Attorney-General may have regard to:

  • (a) any extensive cooperation by the person with law enforcement agencies before sentencing that the sentencing court did not take into account; or (s 19AP(4A)(a))
  • (b) any extensive cooperation by the person with law enforcement agencies after sentencing; or (s 19AP(4A)(b))
  • (c) any serious medical condition the person has that cannot be adequately treated or managed within the prison system. (s 19AP(4A)(c))

Prior to s 19AP(4A) being introduced in 2015, Courts had commented on the meaning of ‘exceptional circumstances’ for the purposes of s 19AP(4).

In Hasim v Attorney-General (Cth) [2013] FCA 1433 the Court considered an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of a decision of the Attorney-General’s delegate to refuse an application under s 19AP.

The Court noted at [62] that the term ‘exceptional circumstances’ is ‘broad, in many respects vague, and a term which has a “wide operation”’, and cited with approval the following statement of Lord Bingham of Cornhill CJ in Reg v Kelly (Edward) (C.A.) [2000] 1 QB 198, 208:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

In dismissing the application for judicial review, Greenwood J noted at [75]:

There is nothing in the Crimes Act which prohibits a decision-maker from taking into account the express integers of the Attorney-General’s governing direction in relation to the future conduct of the Director of Public Prosecutions in prosecutorial conduct concerning contended contraventions of s 233C and, having regard to the considerations already mentioned and the wide import of the term “exceptional circumstances”, the terms of the direction could not be regarded as an irrelevant consideration in informing the state of satisfaction of the decision-maker about whether exceptional circumstances subsisted. The terms and context of the direction are matters of contextual importance to be considered by the decision-maker and in any event, not excluded from consideration by the legislation.

In Cornwell v Attorney-General (Cth) [1993] FCA 497 Foster J considered an application for judicial review of a decision made under s 19AP, in the context of whether the Minister had properly taken into account and deliberated upon questions of public interest and opinion. It was noted at [51]:

I am satisfied that the Minister in his deliberations under s 19AP was both entitled and obliged to take into consideration questions of public interest and public opinion. Not only would such considerations enter into the area of decision involving “exceptional circumstances” but they would also play a role in the determination of the ultimate question whether the Minister should, in his discretion, grant the licence applied for. He might be assisted by appropriate and relevant parole and prison reports and departmental submissions but the ultimate decision was to be made by him bearing in mind all of the material and also considerations bearing upon public interest and public opinion.

4. Length of parole or licence period

4.1 Length of parole period

The parole period for a person for whom a parole order has been made is the period starting in accordance with s 19AMA(2) and ending in accordance with s 19AMA(3): s 19AMA(1), s 16(1).

Section 19AMA:

(1)  For the purposes of this Part, the parole period for a person for whom a parole order has been made is the period starting in accordance with subsection (2) and ending in accordance with subsection (3).

Note: A person released on parole must comply with any conditions of the parole order during the parole period (see sections 19AN and 19AU).

(2) The person’s parole period starts at the earlier of the following times:

  • (a) when the person is released from prison on parole;
  • (b) if the person is serving a State or Territory sentence at the time the parole order is made—when the person certifies on the parole order (or a copy of the order) that he or she accepts the conditions to which the order is subject.

(3) The person’s parole period ends:

  • (a) at the end of the last day of any federal sentence that is, on the day of the release, being served or to be served (after deducting any remission or reduction that is applicable); or
  • (b) if the person has been given a federal life sentence at the later of the following times:
    • (i) 5 years after the person is released from prison on parole in accordance with section 19AM;
    • (ii)  the end of a later day (if any) specified in the parole order for the purposes of this subparagraph (not being a day earlier than 5 years after the person’s expected release from prison in accordance with the order).

4.2 Length of licence period

Section 16(1) sets out the applicable licence period for a person released on licence:

Section 16(1)

“licence period”, for a person who is released on licence for a federal sentence, means the period starting on the day of release on licence and ending:

(a)  if a recognizance release order has been made for the federal sentence—at the end of the day before the person is eligible for release in accordance with the recognizance release order; and

(b)  in any other case:

  • (i)  at the end of the last day of any federal sentence that is, on the day of the release, being served or to be served (after deducting any remission or reduction that is applicable); or
  • (ii)  if the person has been given a federal life sentence—at the end of the day specified in the licence as the day on which the licence period ends.

A licence in relation to a person subject to a federal life sentence must specify the day on which the licence period ends. The day specified cannot be any earlier than 5 years after the person is released on licence: s 19AP(6).

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5. Supervision orders

An offender released on parole or licence by the Attorney-General, may be released subject to ‘supervision’. 7 While supervision is normally added to a parole or licence order, 8 it is not a mandatory requirement. 9 However, the parole order or licence must specify whether or not the person is to be released subject to supervision. 10

An offender released on parole or licence may be subject to supervision for the entire length of the parole or licence period, or until an earlier date specified by the Attorney-General.

If it is proposed that the supervision period for a person released on parole or licence should end before the end of the person’s parole or licence period, the parole order or licence must specify the day on which the supervision period ends: ss 19AL(3)(c); 19AP(6)(c).

Supervision of federal offenders on parole or licence is carried out by state or territory officers who have been authorised in accordance with s 21F.

The length of any supervision period is to be calculated in accordance with the definition of supervision period contained in s 16(1).

Section 16(1)

“supervision period”, in relation to a person who is released on parole or on licence, means the period:

(a) starting when the person is released from prison on parole or licence; and

(b) ending at the earlier of the following times:

  • (i)  the end of the person’s parole period or licence period;
  • (ii)  if the parole order or licence specifies an earlier time at which the supervision period is to end—that earlier time.

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6. Parole or licence conditions

A parole order or release on licence is made subject to all of the following:

  • a condition that the offender must be of good behaviour and not violate any law during the period of parole or the period of release on licence: s 19AN(1)(a)/s 19AP(7)(a); and
  • a condition that an offender, where the offender is subject to a supervision order, obey all reasonable directions of the supervising officer or person: s 19AN(1)(b)/s 19AP(7)(b); and
  • any other conditions (if any) that the Attorney-General specifies: s 19AN(1)(c)/s 19AP(7)(c).

6.1 Amending parole and licence conditions

Under s 19APA(1), at any time before the expiration of the parole or licence period, the Attorney-General may, by an order in writing, do any or all of the following:

  • impose additional conditions on the parole order or licence; (s 19APA(1)(c))
  • vary or revoke a condition of the parole order or licence specified under paragraph 19AN(1)(c) or 19AP(7)(c) or imposed under paragraph (a); (s 19APA(1)(d))
  • change the day on which the supervision period ends, if the supervision period has not ended. (s 19APA(1)(e))

Any such amendment must be made in writing. An amendment does not have effect until notice in writing is given to the offender before the end of the parole period: s 19APA(3).

6.2 Amendments to rectify errors in parole and licence orders

Under s 19APA(2), if a parole order or licence:

The Attorney-General may at any time, by order in writing, amend the parole order or licence to rectify the error, defect or ambiguity. An amendment of a parole order or licence under s 19APA(2) is taken to have had effect from the date of effect of the parole or licence: s 19APA(4).

Section 19APA(2) notes that for the purposes of s 19APA(2)(a), examples of an error of a technical nature include ‘a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter’.

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7. Review of parole or licence decisions

Merits review of parole order and licence decisions is not available. Judicial review of decisions in relation to release on parole or licence is available under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 11

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8. Revocation of parole or licence

A federal parole order or licence may be revoked in one of two ways:

  • by the court when a further sentence is imposed following the commission of an offence by the parolee/licencee during the parole/licence period: s 19AQ (see below 8.1); or
  • at the discretion of the Attorney-General, following failure of the parolee/licencee to comply with conditions of the parole order or licence: s 19AU (see below 8.2).

8.1 Automatic revocation

Under s 19AQ(1)-(2), a federal parole order or licence is automatically revoked where all of the following are satisfied:

  • the federal offender is released on parole or licence; and
  • commits a federal, state or territory offence during the parole or licence period; and
  • is sentenced to imprisonment of more than 3 months in respect of that further offence.

These provisions do not apply if the further sentence is a suspended sentence: s 19AQ(5).

The court that sentences the person for the new offence must determine the time (the revocation time) when the parole or licence order is taken to have been revoked: s 19AQ(1)‑(2).

Section 19AQ(3) provides that the revocation time is either:

  • (a) the time at which the court determines the new offence was committed;
  • (b) the time at which the court determines the new offence was most likely to have been committed;
  • (c) the time at which the court determines the new offence was most likely to have first begun to have been committed.

Where a parole order or licence is revoked, the offender becomes liable to serve:

  • (a) that part of the sentence or of each sentence for a federal offence that the person had not served at the time of their release under that order or licence: s 19AQ(4)(a); or
  • (b) if the court considers it appropriate taking into account the good behaviour of the person during the period (the clean street period) starting at the time the person was released under that order or licence and ending at the revocation time – the sentence or aggregate sentence that would be imposed under (a) is reduced by the period that is the same as the clean street period: s 19AQ(4)(b). See Section 9: Reductions for Clean Street Time.

If a determination under s 19AQ(1) or (2) is made after the end of the parole or licence period, but the time the parole or license order is taken to have been revoked under s 19AQ(1) or (2) is during the parole of license period, the offender is taken to have still been under sentence as if the parole or licence period has not ended: s 19APB(2)(a).

8.1.1 Issuing warrants of detention

Section 19AS governs the sentencing of a federal parolee/licencee for a state or territory offence committed during the period of federal parole/licence.

If a person who is released on parole or licence under the Crimes Act 1914 (Cth) is later sentenced to a term of imprisonment in respect of a federal, State or Territory offence committed during the parole or licence period, and under s 19AQ the parole or licence is taken to have been revoked and the person becomes liable to serve part of a sentence, then:

  • the court imposing the new sentence or sentences must issue a warrant authorising the person to be detained in prison to undergo imprisonment for the unserved part of the outstanding sentence or sentences; and (s 19AS(1)(d))
  • the person must begin to serve the unserved part of the outstanding sentence or of the first to be served of the outstanding sentences on the day that the new sentence is imposed; and (s 19AS(1)(e))
  • the unserved part of the outstanding sentences must be served in the State or territory where the new sentences are imposed. (s 19AS(1)(f))

Note: where the court fails to issue the required warrant under s 19AS(1)(d), the DPP may apply to that court for such a warrant: s 19AS(2).

8.1.2 Fixing a non-parole period where parole or licence revoked

The fixing of a non-parole period for a federal offender who has had their parole order or licence revoked is determined as follows:

  • s 19AR(1)applies where a federal offender released on parole or licence is sentenced to a term of imprisonment in respect of a federal offence committed during the parole/licence period.
  • s 19AR(3)applies where a federal offender released on parole or licence is sentenced to a term of imprisonment in respect of a state or territory offence committed during the parole/licence period.

Under both s 19AR(1) and (3), the Court in sentencing for the new offences must not make a recognizance release order, and must fix a single new non-parole period in respect of the outstanding sentence or sentences, having regard to the total period of imprisonment that the person is liable to serve. However, by operation of s 19AJ, a court may not fix a single non-parole period in respect of both federal sentences of imprisonment and state sentences of imprisonment.

The court retains the discretion to not fix a non-parole period if satisfied that doing so is appropriate having regard to:

The court may also decline to fix a non-parole period if the person is expected to be serving a State or Territory sentence:

  • on the day after the end of the federal sentence; or
  • the last to be served of the federal sentences

as reduced by any remissions or reductions under s 19AA: s 19AR(4)(b).

If a non-parole period is not fixed, the court must state the reasons it declined to do so and enter those reasons into the records of the court: s 19AR(5).

Note: By operation of s 19AR(6), when a court is fixing a non-parole period under s 19ARall of the following apply:

  • a court is not prevented from fixing a non-parole period in respect of the sentence imposed for the offence merely because the offender is, or may be, liable to be deported from Australia: s 19AK; and
  • a court may not fix a single non-parole period in respect of both federal sentences of imprisonment and state sentences of imprisonment: s 19AJ; and
  • the non-parole period, for sentences other than for life imprisonment, must not end later than the end of the sentence: s 19AF.

Under s 19AH(1), failure to comply fully with the Act in respect to fixing non-parole periods does not affect the validity of the sentence: s 19AR(7).

Section 16B(b) requires a court to have regard to any sentence the offender is liable to serve because of the revocation of a parole order made, or licence granted under Part 1B or under a law of a State or Territory.

A court in this situation should have regard to this additional period of imprisonment that will result from the breach of parole, when considering the totality principle: R v Piacentino [2007] VSCA 49, [105]-[108] (Eames JA, Buchanan, Vincent, Nettle and Redlich JJA agreeing).

The Court in R v Piacentino [2007] VSCA 49 stated at [107]:

[T]otality was a relevant sentencing consideration … and … upon re-sentencing this Court must have regard to the effect of the additional period of imprisonment that would result from his breach of parole. … [T]he learned sentencing judge, applying totality, ought to have had regard to the period of one year and six months which remained to be served …

8.1.3 Where subsequent conviction is appealed or quashed

Section 19AT contains detailed provisions about the procedure the court must follow where the offender appeals the conviction which has given rise to the new sentence.

8.2 Discretionary revocation

Under s 19AU(1) the Attorney-General may, in writing, revoke a parole order or licence at any time before the end of the parole/licence period if either of the following occur:

  • the offender has, during that period, failed to comply with a condition of the order or licence: s 19AU(1)(a); or
  • there are reasonable grounds for suspecting that the offender has, during that period, failed to comply: s 19AU(1)(b).

The instrument of revocation must specify the condition that was breached or is suspected of having been breached: s 19AU(1).

Before revoking the parole order or licence, the Attorney-General must do both of the following:

  • notify the person of the condition alleged to have been breached: s 19AU(2)(a);  and
  • allow the person 14 days to provide written reasons why the parole order or licence should not be revoked: s 19AU(2)(b).

Note: The Attorney-General need not provide written notice before revoking the parole order or licence where any of the following occur:

  • the person’s whereabouts are, after reasonable inquiries, unknown: s 19AU(3)(a); or
  • there are circumstances of urgency which require the parole order or licence to be revoked without giving notice: s 19AU(3)(b); or
  • in the opinion of the Attorney-General it is necessary to revoke the parole order or licence without giving notice to the person in the interests of ensuring the safety and protection of the community or of another person: s 19AU(3)(ba); or
  • the person has left Australia: s 19AU(3)(c); or
  • in the opinion of the Attorney-General it is necessary, in the interests of the administration of justice, to revoke the parole order or licence without giving notice: s 19AU(3)(d).

8.2.1 Arrest, summons and warrants

Section 19AV details procedure relating to the arrest of a person whose parole order or licence has been revoked by the Attorney-General.

Section 19AW details procedure relating to the issuing of a warrant of detention in relation to a person whose parole order or licence has been revoked by the Attorney-General and who received due notification of the revocation. See below 8.2.3.

Section 19AX contain detailed provisions about the issuing of warrants and the arrest of any person whose parole order or licence has been revoked by the Attorney-General and who was not notified of the revocation.

Section 19AZ(1)-(2) provide magistrates with the power to take evidence on oath, to administer the oath, to summon witnesses, and to order the production of documents or articles. Section 19AZ(3) applies state or territory law in relation to serving a summons under the section.

Penalties relating to disobedience of summons are found in s 19AZA.

8.2.2 Right of appeal

Where a warrant for imprisonment is issued pursuant to s 19AW(1) or s 19AX, the person may appeal to the Supreme Court of the state or territory in which the person was arrested against any of the following:

  • the issue of the warrant: s 19AY(1)(a); or
  • the calculation, for the purposes of the warrant, of the unserved part of any outstanding sentence: s 19AY(1)(b); or
  • the fixing, for the purposes of the warrant, of a non-parole period or the refusal to fix such a period: s 19AY(1)(c).

Procedural details that apply to the appeal hearing are contained in ss 19AY(2)-(7).

8.2.3 Fixing a non-parole period

The non-parole period must be fixed and contained in the issued warrant of imprisonment: s 19AW(1)(f).

If the prescribed authority cannot complete a hearing under s 19AW(1) immediately, the prescribing authority must issue a warrant for the remand of the person in custody, pending completion of the hearing: s 19AW(2).

A non-parole period is not required to be fixed where:

  • it is inappropriate to do so because of the nature of the breach of the conditions of the order or licence: s 19AW(3)(a);or
  • the unserved part of the outstanding sentence is 3 months or less: s 19AW(3)(b).

The discretion under s 19AW(3)(a) not to fix a non-parole period is apt to be exercised where the nature of the relevant breach of the conditions of the parole order or licence is so serious that the prescribed authority considers that the offender should not be released on parole: Dobie v The Commonwealth [2013] FCA 1224[40]-[41] (Rangiah J).

Fixing a non-parole period of ‘zero months’ on a warrant does not have the same effect as declining to fix a non-parole period. Rather, the effect is that the offender is eligible for parole immediately following the issue of the warrant: Dobie v The Commonwealth [2013] FCA 1224[38]-[39] (Rangiah J).

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9. Reductions for ‘clean street time’

Under s 19APB(1)(a), when an offender is released on parole/licence, they are deemed to still be under the federal sentence, and not to have served any of the time that remained to be served when they were released on parole/licence. The effect of this is that where the parole order or licence is revoked, the offender remains liable to serve the balance of the time that was left to be served on the day they were released on parole/licence.

Where a parole or licence order is taken to have been revoked under s 19AQ(1) or (2), the Court sentencing the offender for the new offence has a discretion to take into account the good behaviour of a person during the “clean street period”, if it considers appropriate, under s 19AQ(4)(b): see Section 9.1 below.

Where a parole or licence order is subject to discretionary revocation, the time left to serve is reduced in accordance with s 19AA, either by reference to the law of a state or territory, or it is taken into account in setting the non-parole period under s 19AQ: see Section 9.2 below.

9.1 Reduction where parole or licence revoked automatically

Where a parole order or licence is taken to have been revoked under s 19AQ(1) or (2), the offender is to serve the balance of the sentence which had not been served at the time that the offender was released on parole or licence. s 19AQ(4)(a).

If the court considers it appropriate, it may reduce the time the offender is liable to serve by taking into account the good behaviour of the person during the period (the clean street period), starting at the time the person was released under that order or licence and ending at the revocation time: s 19AQ(4)(b).

Section 19AQ(4)(b) was introduced by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth). Prior to the amendment, revocation was automatic, and occurred from the time that the new sentence was imposed. The Explanatory Memorandum explains the purposes of the amendment at [314]:

The effect of automatic revocation based on the date of sentencing rather than at the time at which the further offence was committed has led to offenders receiving credit for time during which they have not been of good behaviour. Often it is also the case that the offender has no time left to serve because of the lapse of time between the commission of the offence and the date of sentencing. The proposed new section 19AQ addresses this problem by requiring the court that sentences the person for the new offence to determine the time when the parole order or licence is taken to be revoked by determining when the new offence was committed.

9.2 Reduction where parole or licence is subject to discretionary revocation

Where a parole order or licence is revoked by the Attorney-General under s 19AU, the offender is to serve the balance of the sentence which had not been served at the time that the offender was released on parole or licence: s 19AW(1)(e).

A law of a state or territory that provides for the remission or reduction of state or territory sentences applies in the same way to the remission or reduction of a federal sentence in a prison of that state or territory: s 19AA(1).

However, the law does not remit or reduce the non-parole period or pre-release period in respect of a federal sentence, except as provided by s 19AA(4): s 19AA(1A).

A federal offender will receive a reduction in the sentence to be served for time spent in the community on parole or licence (‘clean street time’), if so provided for in the relevant state or territory legislation: s 19AA(2).

The relevant state or territory is the one in which the offender is serving his or her sentence at the time of release on federal parole: DPP (Cth) v Wallace [2011] WASC 286, [46] (Martin CJ). However, the relevant state or territory may also be the one in which the offender has been on parole with the permission of the relevant Commonwealth authority at the time the calculation falls to be performed: DPP (Cth) v Wallace [2011] WASC 286, [46] (Martin CJ).

Where a federal offender whose parole order or licence has been revoked does not get the benefit of s 19AA(2), the prescribed authority fixing a new non-parole period under s 19AW must have regard to the period of time spent by the person on parole or licence before that parole order or licence was revoked: s 19AA(3).

Where a person brought before a prescribed authority under s 19AV for the issuing of a warrant of detention is dealt with in accordance with s 19AW, the unserved part of the outstanding sentence/s is to be reduced by any period of remand under s 19AW(2)s 19AW(6).

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