7.1 Release from custody prior to the completion of the full term of a prison sentence is a very common feature of criminal justice systems. Various methods can be used, including parole, release on licence, remission and pardon. Release may be conditional or absolute. Legislation in New South Wales has abolished remissions1 and release on licence,2 although the Royal prerogative is maintained.3 The Sentencing Act 1989 now provides parole as the only mechanism for release from custody prior to completion of the full sentence.
7.2 This chapter examines the law relating to parole, the procedures of the Offenders Review Board and considers whether any reform is necessary. The Commission’s terms of reference specifically require us to consider whether the decisions of the Offenders Review Board should be reviewable, and if so, how.4
MEANING OF PAROLE
7.3 Parole is the discharge of prisoners from custody prior to the expiry of the maximum period of custody imposed by the sentencing court, provided they agree to abide by certain conditions, with the intention that they serve some portion of their sentence under supervision in the community, subject to recall for misconduct.5 Under the Sentencing Act 1989 the court may specify a minimum term and an additional term for any sentence of imprisonment greater than six months.6 After serving the minimum term, the offender is eligible for release on parole. In the case of offenders with a sentence of three years or less which has a minimum term, release is automatic on the expiry of that term. For all other offenders who have a minimum term, release occurs on the order of the Offenders Review Board. Release is subject to terms and conditions imposed either by the sentencing court when imposing the sentence or the Board, tailored to the needs of the particular offender. Supervision is carried out by officers of the NSW Probation and Parole Service. All paroled offenders remain under the jurisdiction of the Offenders Review Board and subject to recall or other discipline for breach of the conditions of parole release during the balance of the additional term.
7.4 Parole mitigates the harshness of the sentence by reducing the time a prisoner spends in custody but it is not an act of clemency, compassion, or, necessarily, a reward for good conduct. It is part of the continuum of punishment of the offender, and the sentence continues even though the offender is free from custody. Liberty is conditional, and compliance with conditions can be onerous. Some offenders regard the need to comply as a greater punishment and do not, in fact, seek release to parole even though they are eligible for consideration.7
THE RATIONAL FOR PAROLE
7.5 When the current parole procedures were introduced by the Sentencing Act 1989, the rationale for parole in the sentencing regime was largely assumed.8 When the Parole of Prisoners Act 1966 established the modern parole system in New South Wales, it embodied the prevailing correctional philosophy of rehabilitation.9 The conditional freedom of parole would allow an offender guided and supervised transition from custody to the community in circumstances conducive to reform. The underlying purpose of the parole system was the community benefit flowing from the rehabilitative effects of supervised, conditional early release:
[P]arole is a concession to the offender, but a concession which it is expected will benefit the community by bringing the life of the offender under the guidance and control of a skilled officer with the intention of assisting resettlement in the community and so providing the environmental influences which will militate against the offender committing further criminal activity.10
7.6 Undoubtedly, though not necessarily expressed at the time, other factors influencing the introduction of parole in 1966 were economic and humanitarian.11 The costs to government and the community of incarceration of offenders are obvious, and the inhumanity of imprisonment in brutalising and oppressive institutions was highlighted by the then emerging “decarceration movement”.12
7.7 The element of risk inherent in a parole system was recognised by the legislature, but balanced against the risks present when any offender is released from prison at the end of the sentence.13 Parole seeks to limit the risks to the community by promoting rehabilitation of offenders, thereby saving the community from the consequences of recidivism and the costs of punishing it.
7.8 When the courts are determining how a sentence is allocated between the minimum and additional terms in accordance with s 5(2) of the Sentencing Act 1989,14 “special circumstances” which will make an offender eligible for parole consideration earlier than the three quarter point of the full sentence include, among other factors, aspects and prospects of rehabilitation.15
Resting on these decisions can only be the recognition, shared by penologists and judges experienced in the criminal law, of the desirability of certain offenders being subjected to an extended period of conditional release subject to supervision on parole. This is particularly the case for offenders convicted of very serious crime, and recidivists with cumulative sentences, who may have spent long periods in imprisonment and may require lengthy supervision while they adjust to their release and adapt to a world which may have significantly changed. It is also appropriate for young offenders, with clear prior records and above average prospects of rehabilitation, who would benefit from more supervision on parole than from incarceration, which may even be counter-productive.16
Criticisms of parole
7.9 The manner in which early release processes, particularly parole, affect a prisoner’s sentence is at times subject to criticism in the media, and by others, who claim either that these processes operate too leniently, or that they should not be in use at all, because they needlessly expose the public to harm, usurp the court’s sentencing authority and unduly lessen the effectiveness of the sentence.17 Calls for the abolition of parole are also associated with the rise of retributivist philosophy in sentencing, which holds up parole as a symbol of the charade in sentencing.18
7.10 During the 1970s and 1980s, particularly in the United States, there was a very strong anti-parole movement,19 and several States abolished discretionary parole and indeterminate sentencing. Inquiries in Australia at the same time put the system of early release under very critical review.20 In New South Wales the Muir Committee’s Report contained a minority report recommending the abolition of parole and its replacement by determinate sentences and after-care recognizances.21 The Australian Law Reform Commission initially recommended abolition of parole for federal prisoners in 1979 in its Interim Report Sentencing of Federal Offenders,22 but by 1988, it had retreated from this position to one favouring reform of parole procedures and automatic release.23 The 1979 proposal had attracted much criticism and the Commission itself cited the North American experience in the intervening years which showed that the abolition of parole there led to greater prosecutorial discretion, and longer prison sentences, resulting in unmanageable prison populations and enormous costs.24
7.11 The Canadian Sentencing Commission also recommended abolition of parole arguing that it conflicted with the principle of proportionality which had been assigned the highest priority in its sentencing rationale. Further, the lack of equity, clarity and predictability of discretionary parole as then practised created unacceptable uncertainties and disparities in the sentencing process, and undermined the role of the sentencing judge.25 This recommendation attracted neither public26 nor Government support.27 The Government’s response has been to attempt reform of the parole process, rather than to pursue abolition.28
7.12 Criticisms of parole can be found on three main issues. First, various reports have highlighted procedural deficiencies in the operation of discretionary parole systems, and revealed a lack of predictability, openness and accountability.29 Problems included delay, secrecy, uncertainty and breaches of natural justice, with prisoners having no right to be heard or represented, no access to the information used by, or reasons for the decision of, parole authorities, or knowledge of the criteria on which decisions were made. Secondly, public disquiet about parole is said to focus on subversion of judicial sentencing, insufficient punishment for offenders and weakening the deterrent effect of imprisonment.30 Thirdly, discretionary parole is “premised on theoretically and empirically faulty notions of rehabilitation and on non existent behavioral expertise of parole board members”.31 The basis for parole decision making is flawed: it is not possible to predict human behaviour, that is whether, when, and in what way a person may re-offend; nor is there evidence of the effectiveness of rehabilitative measures.
Empirical studies
7.13 Empirical evidence evaluating parole is scarce and problematic. Measuring the effectiveness of parole, or indeed any penal policy, must be inexact. Comparative analysis is unhelpful because of differing definitions of failure, dissimilar follow-up periods and varied offender populations, data collection and record keeping practices.32 Additionally, qualitative differences in legislative structures, correctional policies, release eligibility criteria, the nature of supervision and support, parole conditions and approaches to revocation, all militate against drawing reliable conclusions from such limited research as is available. Recidivism is the accepted measure, but the causal link to parole is far less certain. Further, parole should be expected to show some success, as those positively selected for parole release are assumed to be more likely to succeed.
7.14 Research on early release in New South Wales, including a recent study of re-offenders, has only considered the role of parole in recidivism in very limited ways.33 The Commission understands that a project on recidivism of parolees is currently awaiting funding.34 Other Australian studies have examined recidivism in Western Australia35 and South Australia.36 Reviews of international research evaluating early release indicate a wide range of effectiveness.37 The research that is available perhaps shows lower levels of recidivism for offenders who have been released to parole, but the Commission does not consider it appropriate to draw more meaningful conclusions in support of parole from it.
The Commission’s position
7.15 Many of the calls for abolition of parole have relied on procedural faults in the process of parole which are not evident in the current system in New South Wales.38 They are also a product of circumstances peculiar to the time and place, as well as prevailing sentencing and penal philosophies which are not necessarily compatible with the current New South Wales position.
7.16 Apart from the relatively short-lived and narrowly-based opposition to parole noted above, there has not been serious challenge to the value of parole in comparable criminal justice systems. Recent inquiries considering parole in Victoria,39 Western Australia40 and England and Wales41 have reaffirmed its place in those jurisdictions.
7.17 Public perceptions of parole are likely to focus on its dramatic failures - the serious crimes committed by offenders who would, other than for parole, have been in custody at the time. Inevitably, some who are released to parole, and the proportion is not known, will re-offend. Their identity, as well as the timing and nature of their offences, cannot be predicted with any certainty. Parole does not prevent the commission of further crimes. Neither, it must be recognised, does imprisonment (except, of course, during the custodial period).
7.18 On balance, the Commission does not consider that there is a case for the abandonment of parole. In view of the incontrovertible fact that the vast majority of prisoners will be released into the community, the Commission believes that it is preferable that there is an opportunity for release of offenders with support and supervision, conditional on their good behaviour prior to the expiry of the full term of their sentence, than for all release to be unconditional and unguided. However, offenders should only be released when assessed to meet criteria which place the public interest as the paramount consideration, and in the acknowledgement that complete success will be unattainable.
RESPONSIBILITY FOR DETERMINING RELEASE TO PAROLE
7.19 There is usually a division of function between the judiciary and the executive in the total sentencing regime, although the roles can be allocated in various ways. The model currently used in New South Wales is a dual system. The judiciary determines whether parole can be granted by setting a minimum term. Offenders with shorter sentences (between six months and three years), are released to parole automatically when it has been served. For all other sentences, when the minimum term has been served, the Offenders Review Board has the discretion to order release, if satisfied that parole is in the public interest and that the offender will be able to adapt to normal lawful community life. The Offenders Review Board, although part of the executive, is a statutory body independent of Ministerial or departmental authority, and exercises functions that are judicial in character. Presided over by a judicial officer, who has an effective power of veto, the process has a significant level of judicial participation in built. In practice, the veto is seldom used.
7.20 The Commission’s terms of reference require us to consider whether this level of judicial involvement in parole is sufficient.42 An alternative parole model would redefine parole as solely a judicial function.43 This was the view of the Mitchell Committee, which reported on various aspects of the criminal law in South Australia.44 The Committee argued that release to parole was an integral aspect of sentencing discretion, and that the decision to grant parole involves assessment of evidence in a judicial manner, best undertaken by persons with judicial experience.45 Moreover, the Mitchell Committee argued, the trial judge with experience of the case is in a distinctly better position to make the parole decision than a parole board, though it recognised that requiring the presiding trial judge to consider an offender’s parole application would not always be practicable.46 Other justifications for such an approach lay in the courts’ achieving a greater level of understanding of correctional practices, and the more likely acceptance by the offender of a decision to deny parole.
7.21 The Commission does not consider that a judicial officer from the original sentencing court should necessarily be responsible for deciding to release an offender to parole, or to review the decision of the Offenders Review Board. There are serious practical problems in a system which is based on the expectation that the original trial judge is available, and in possession of the best information to make the discretionary decision, as required by statute “in the public interest”, about release to parole. Nor is the original judge a better arbiter of the decision he or she may have made many years earlier and can hardly be expected to remember. Further, the use of any judge, not necessarily the trial judge, would create demands on limited court resources, and open the area up to more formal procedures.
7.22 There are also more fundamental issues regarding the nature of parole and its relationship to the whole of sentencing. The current legislation requires the Offenders Review Board to make a parole order “having regard to the principle that the public interest is of primary importance” and if “it has sufficient reason to believe ... that the prisoner would be able to adapt to normal lawful community life”.47 The public interest must be evaluated when the decision to grant parole is made. It follows that the decision can only be made when release is imminent and by an authority in which the public interest is clearly represented. A judicial officer is not in any special position of knowledge about the offender. Nor would trial judges have special expertise in dealing with parole matters or the specific issues of public interest which must be addressed. The principles applicable to a paroling decision are not the same as, although similar to, those governing the sentencing decision.48 The Commission believes that a specialist independent and experienced body, with judicial leadership and broad representation from the community and relevant institutions and professions is better placed to make parole decisions where the public interest and public safety are paramount issues.
7.23 A qualification applies for offenders with shorter sentences, whose release on parole occurs automatically by administrative action at a time determined by the sentencing court. This procedure was instituted following recommendations in the Nagle Report, as developed by the Muir Report.49 Undoubtedly administrative convenience and the resources consumed by even the brief and routine manner in which the Parole Board considered such cases prompted such a proposal. It is argued that those serving short sentences are less likely to be a threat to the community’s safety and so the risks of automatic release are far less than for prisoners serving longer sentences. During a limited time in custody, it is unlikely that the offender has undergone significant changes in behaviour, attitudes, or had opportunities for participation in remedial programs which could produce such changes. Nor has there been time in which to assess the impact of imprisonment, participation in remedial programs and the prospects for future conduct.50 As parole supervision is far less costly than custodial care, there are also benefits for more effective use of corrections resources which is in the community’s interest. The Commission considers that, generally, release to parole for prisoners with relatively short sentences should be automatic. Although the three year limit has worked well, it is inevitably an arbitrary cut-off point. The Commission is interested in receiving submissions as to the length of prison terms to which such automatic release should apply.
THE INSTITUTIONAL STRUCTURE OF PAROLE
Offenders Review Board
7.24 The Offenders Review Board is an independent statutory body constituted in accordance with Part 5 of the Sentencing Act 1989. It is composed of a maximum of nine members, seven appointed by the Governor and two ex-officio, one of these a police officer nominated by the Commissioner of Police, the other from the NSW Probation and Parole Service nominated by the Commissioner of Corrective Services.51 Of the appointed members, three are judicial members,52 and four are to reflect as closely as possible the composition of the community at large.53 The maximum term for all members is three years. Currently, there are four serving community members.54 The judicial members are appointed as Chairperson, Alternate Chairperson and Deputy Chairperson of the Board. One of the judicial members presides, with a veto and a casting vote, at all meetings and Review Hearings of the Board,55 and they have specific powers to require attendance before the Board, production of documents, the giving of evidence under oath and the examination of any person in relation to proceedings before the Board.56 The Board is supported by a Secretariat, comprising a Secretary and an establishment of seventeen administrative staff.
7.25 The major function of the Offenders Review Board is to consider whether an offender should be released on parole. It is also responsible for considering whether a parolee has breached any of the terms and conditions of the parole order and directing what action should be taken, including revocation.57
7.26 The name of the Offenders Review Board is a matter of some concern. Created by the Sentencing Act 1989, the “Offenders Review Board” replaced the Parole Board. The name change was intended more accurately to reflect the function of the Board,58 but it is clear instead that confusion has been created and perpetuated, particularly with the Serious Offenders Review Council and its name changes. “Parole Board” is generally used for such authorities, and popularly understood. The Sentencing Legislation (Amendment) Bill 1994 (NSW) proposed to return to the name “Parole Board”, recognising that confusion exists.59 The Offenders Review Board itself urges this course.60 The Commission proposes that the Offenders Review Board be renamed the Parole Board.
Serious Offenders Review Council
7.27 The Serious Offenders Review Council (SORC) has only a limited role in the determination of whether to grant a prisoner a parole order.61 It is a statutory authority within the Ministry of Corrective Services, constituted under the Prisons (Amendment) Act 1993. Its core function is the management of certain categories of prisoners, principally serious offenders, and reporting on them to the Minister, the Commissioner of Corrective Services, the Supreme Court (for redetermination of life sentences under s 13A of the Sentencing Act 1989) and the Offenders Review Board (concerning release on parole).62 It has recently acquired additional responsibilities for assessing the suitability of prisoners for pre-release leave programs prior to parole or release from custody,63 as well as for reviewing decisions to segregate prisoners.64 The SORC Secretariat, which supports the work of the Council, administers the Victims’ Register65 within the Department of Corrective Services.
Serious offenders
7.28 Serious offenders are prescribed in s 59 of the Prisons Act 1952 (NSW) as prisoners who are:
- sentenced to penal servitude for life;
- convicted of murder;
- sentenced to a term of imprisonment prior to the introduction of truth in sentencing, whose sentence has been redetermined under s 13A of the Sentencing Act 1989;
- sentenced to a minimum term of twelve years or more; or
- managed as serious offenders in accordance with decisions made by:
There are at present approximately 380 serious offenders in the New South Wales prison system out of a total prison population of 6,400.66
7.29 The Serious Offenders Review Council comprises five appointed members, two judicial members and three representing the community or any significant portion of the community,67 appointed for terms of up to three years,68 and two official members, who are departmental officers appointed by the Commissioner of Corrective Services.69 The Council meets approximately twice monthly and a committee of three (a judicial, official and community member) constitute Visiting Committees which visit every prison establishment twice a year to interview serious offenders and report on their progress. Information gathered from gaol authorities in conjunction with these visits is used to make recommendations to the Commissioner of Corrective Services concerning each prisoner’s classification, placement and involvement in programs. The purpose of the visits and the system of management of serious offenders is to “encourage them to address issues which otherwise might inhibit their progress towards ultimate return into the community as law abiding citizens, or [to adjust to] a lifetime in custody”.70
7.30 SORC has established a Serious Offenders Management Committee, with members from within the Department of Corrective Services,71 which is responsible for managing prisoners whose offences are less likely to attract serious public condemnation, or whose management is likely to be less complex. When a serious offender is approaching the end of the minimum term, the full Council takes over responsibility for management to monitor more closely the prisoner’s preparation to be considered eligible for parole. The Management Committee currently manages about 200 prisoners, the Council 180.
Advice to the Offenders Review Board
7.31 SORC’s management involves constant monitoring of a prisoner’s progress in behaviour, attitude, work, participation in education, counselling and other programs. When SORC is required to provide a report to the Offenders Review Board for the determination of a prisoner’s suitability for release on parole, the advice can be compiled from a comprehensive record of the manner in which the prisoner has served the sentence, and from the personal contact of SORC members with the inmate during the prison visits. SORC’s advice is given from a perspective independent of that held by those who have day-to-day control of the prisoner. It reflects judicial experience and input from community representatives. The quality of the advice SORC can provide is also a reflection of the management procedures it adopts.
PROCEDURES FOR GRANTING PAROLE
Offenders subject to the Offenders Review Board
7.32 The Offenders Review Board follows the procedures set down in s 16-23 of the Sentencing Act 1989. Offenders with at least one term of imprisonment greater than three years are released on parole only when the Offenders Review Board makes a parole order in their favour. The Board must consider whether to make a parole order at least 60 days prior to the day when a prisoner becomes eligible for release on parole. If parole is refused, the Board must reconsider the prisoner’s suitability for parole within one year of the date on which the prisoner became eligible for release on parole.72
7.33 Prior to the appropriate time to determine a grant of parole, the Board requests information from prison authorities, primarily the Parole Officer,73 but also from other gaol personnel (including Superintendent, Education Officer, Drug and Alcohol Counsellor, Psychologist) concerning the offender’s behaviour, work, attitudes and post-release plans, from which members can make an assessment of whether the offender can establish eligibility for parole. Members also have access to the relevant comments of the sentencing court;74 the prisoner’s antecedents and special circumstances of the case;75 reports made to the Board in previous dealings concerning the offender; material requested by the Board from external authorities or persons;76 and, in some circumstances, submissions from victims or their representatives.77 In the case of a serious offender, a report from SORC must also be put to the Board.78 The Board may consider “any other relevant matter”.79 This information is provided to each member of the Board in advance of the meeting at which the offender’s application will be considered. All the information put before the Board is made available to the prisoner, with the exception of documents made subject to s 49, which gives a judicial member the power to withhold any document if its provision may adversely affect the security, discipline or good order of a prison, or endanger the prisoner or any other person. The prisoner has no right to be told whether any documents have been withheld under s 49.80
7.34 The Board meets in private to make an initial consideration of each application. If the members are agreed that on the information before them it is appropriate to make a parole order, this is done administratively, with the prisoner being informed within seven days. The Regulation specifies the standard terms and conditions of a parole order, although the Board can amend or add to these. Commonly, conditions will be tailored to the individual offender, for example to require residence in a nominated location, or entry into a drug or alcohol rehabilitation program.
7.35 The parole order takes effect on the day on which the minimum term expires, or, if that time has passed, not later than seven days after the order is made. The parole order is in force for the balance of the additional term of the offender’s sentence. During that time (up to a current maximum of three years) the offender may be subject to the supervision, and given the support, of officers of the NSW Probation and Parole Service. Any conduct which breaches a term or condition of the parole order will be reported to the Offenders Review Board, which will determine the appropriate action. The ultimate sanction is revocation.81
Review hearings
7.36 If the Board forms an initial intention to refuse parole, a review hearing is scheduled as soon as practicable and notice is given to the offender. The review hearing is a quasi-curial procedure. Proceedings are conducted in public, in court premises, and though evidence is given on oath, the Board is not bound by the rules of evidence and may inform itself on any matter as it thinks fit.82 A judicial member of the Board chairs the hearing, but it proceeds as far as possible in a non-adversarial manner and with less formality than a court. At the review hearing the offender is entitled to legal representation83 and may call and examine witnesses, give evidence under oath and address the Board as relevant to the proceedings.84 Board members are entitled to question the offender and all witnesses. A hearing usually takes up to an hour, but may take up to two days. The decision of the Board is delivered at the conclusion of the hearing by the Chairperson. This may be a brief statement of the reasons for refusing the order, or a longer analysis of the offender’s application, the evidence relied on by the Board, and its reasons for refusal. The Board may grant parole after a review hearing. In 1995, it did so in approximately one-third of cases in which prisoners appeared at the hearing, and in eight per cent of cases in which prisoners did not appear.
7.37 Where parole is refused, the Board must reconsider the offender’s suitability for parole within one year of the date on which the prisoner became eligible for parole,85 when the procedure follows that outlined above.
Serious offenders
7.38 Serious offenders are subject to the same general procedures of the Offenders Review Board when making an application for parole. In addition, the Serious Offenders Review Council is required to provide a report and advice concerning the offender to the Offenders Review Board for its consideration.86 Further, should the Offenders Review Board reject the advice of SORC, the Board must state its reasons in writing, and refer them to the Council. The Review Council may make submissions concerning the rejection to the Board within 21 days, and the Board is precluded from making a final decision on the release of the serious offender during that period.87 A member of the Serious Offenders Review Council is entitled to attend any meeting and Review Hearing at which release of a serious offender is being considered and advise Board members, but does not have any right to vote on the parole decision.
7.39 In the Board’s experience, notwithstanding the care and caution taken by SORC in preparing offenders for release, most serious offenders fail, at the time of their first parole consideration, to satisfy the Board that release is appropriate, having regard to the principle that the public interest is of primary importance.88
Offenders with sentences three years or less89
7.40 For offenders eligible for parole whose sentence is greater than six months, but does not exceed three years, the grant of parole is automatic at the expiry of the minimum term of their sentence, with the period of parole running for the duration of the additional term. Release occurs by administrative action, and the terms and conditions of the parole order are established by reference to the regulations and any directions given by the sentencing court. Offenders released in this manner nevertheless are brought under the Offenders Review Board’s authority while on parole. Any conduct which breaches a term or condition of their parole order will be brought to the attention of the Offenders Review Board by the Probation Service, and they will be subject to the Board’s powers to warn or vary or revoke the parole order.
CRITERIA FOR GRANTING PAROLE
Generally
7.41 In determining whether to make a parole order, the Board must assess the application and may not make a parole order unless it has:
(a) determined that the release of the prisoner is appropriate, having regard to the principle that the public interest is of primary importance; and
(b) considered relevant comments (if any) made by the court when sentencing the prisoner; and
(c) considered any reports required by regulations to be furnished to it; and
(d) taken into account the antecedents of the prisoner and any special circumstances of the case; and
(e) determined that it has sufficient reason to believe that the prisoner, if released from custody, would be able to adapt to normal lawful community life; and
(f) considered any other relevant matter.90
7.42 The onus is on the prisoner to convince the Board that, having regard to the public interest, it is appropriate to make an order for supervised and conditional release to the community because there is sufficient evidence to demonstrate that the offender will be able to adapt to normal lawful community life. This reflects a change in attitude to parole, reversing a presumption in favour of parole which applied before truth in sentencing legislation.91
7.43 The Board’s refusal to grant a parole is recorded on the Board’s file and communicated to the prisoner in accordance with the following formula:
Reasons:
- Unable to adapt to normal community life
- Risk of Reoffending
- Past failure/s on conditional liberty/parole
- Need for further drug and alcohol counselling
- Need for further psychological/psychiatric counselling
- Need for structured post release plan
- Unsatisfactory post release plan
- Inappropriate in the public interest
This list is not exclusive and other reasons may be given, such as the need for a pre-release program.
7.44 These reasons exemplify the way in which the Board interprets the statutory criteria on which they must base a decision to make or refuse to make a parole order. The Board’s decision balances the public interest with the interest of the individual parolee.92
Release under exceptional circumstances
7.45 The Sentencing Act 1989 makes provision for release of an offender before the expiry of his or her minimum term in very restricted situations. Under s 25A, the Offenders Review Board may grant parole to prisoners, other than those serving life sentences, prior to the time when he or she may otherwise be eligible for release, only if they are dying or release is necessary because there are “exceptional extenuating circumstances”.93 The circumstances envisaged by the legislature that would be acted upon by the Board were those where the prisoner was suffering a terminal illness or serious disability such as quadriplegia or brain damage.94 If parole is granted, the offender serves a longer period on parole, and the length of the full sentence is unchanged. The Board has complete independence in considering applications for release under s 25A, and the Commission is advised that it has granted parole under this section in five instances in 1994.95 The Royal Prerogative of mercy remains a means for the executive to release offenders, not necessarily to parole.96
7.46 The Attorney General’s Sentencing Review raised the issue of whether this was too restrictive a test for release on compassionate grounds and whether the Board’s powers under s 25A be enlarged.97 It could be replaced by a less stringent test such as it being “highly desirable” or “in the interests of justice” and retaining “exceptional extenuating circumstances”. Alternatively, the “exceptional” could be removed from the latter phrase. The Commission seeks comments on the desirability of, and methods for, amending the Board’s powers under s 25A for releasing offenders on compassionate grounds.
Evaluation of parole procedures
7.47 In the following discussion of issues relating to the procedures for the release of offenders to parole, the Commission draws on preliminary submissions received and our observations of the operations of the Offenders Review Board, both in its private meetings and at public Review Hearings. The Commission acknowledges the co-operation of the Chairman and members of the Offenders Review Board, and the Board’s Secretariat in undertaking these inquiries. Assistance has also been given to the Commission by the Serious Offenders Review Council and its Secretariat.
Independence of the Offenders Review Board
7.48 In carrying out its mandate, the Offenders Review Board should be independent of undue influence from any outside sources. The Commission is satisfied that the Board does, in practice, operate with autonomy. The Commission’s observation is that the composition and professionalism of Board members reflects the independence with which they undertake their obligations.
7.49 The only question which the Commission addresses in this context is whether the Board is free from the potential for political interference or control. This is not an academic issue, as the Commission is aware of at least one occasion when a Minister sought to pressure the Board to alter a decision it had made concerning the parole of an offender with a very high public profile.98 This attempt was unsuccessful.
7.50 The Commission recognises the importance for the Board of having as Chair a serving or retired judge. Such a person will be familiar with the concept and practice of independence, and will have had experience of making sensitive decisions concerning criminal offenders and having those decisions subject to public comment without the opportunity to engage in debate on the issues. The method of appointment of members which relies on ministerial selection for a limited time makes them potentially vulnerable. It would be possible to give members tenure until retirement, but the Commission does not see that this is a practical step. Our tentative view is that members should be appointed for a fixed term of three years and that cl 4 of Schedule 1 of the Sentencing Act 1989 should be amended accordingly. The Commission invites submissions on ensuring the independence of the Offenders Review Board.
Composition of the Offenders Review Board
7.51 The composition of the Board reflects the various groups in society which have an interest in the decision to release offenders from custody. It is similar to parole board membership in other jurisdictions,99 though there is a relatively strong community participation.
7.52 Judicial oversight provides a direct link to the sentencing role of the judiciary and allows for proper consideration being given to questions of law which inevitably arise in the context of parole decision-making and a check on unfettered administrative action. It is also argued that it promotes public confidence in the decisions reached by a Board.100 The Commission considers that this judicial role is an important element in the Board’s operation and should continue. It is possible, however, that other than retired District Court judges could be appointed. Subject to resources, the Commission sees that benefits could flow from the appointment of serving District Court judges. This could perhaps be achieved with one or two judges appointed on a secondment basis for a term of two or three years, which would allow specialist experience to develop, and to link more closely the work of the Board with the sentencing courts.
7.53 The perspectives of ex-officio correctional and police authorities inform the Board’s deliberations. The Offenders Review Board submitted that experience has shown that these are the two most appropriate official members.101 The Commission accepts that these officers contribute the necessary expertise to informed parole decision-making by the Board.
7.54 The public interest in community protection is recognised by the preponderance of community representatives on the Offenders Review Board. This, the Commission considers, is most valuable and is consistent with the legislative principle that the public interest is of primary importance in making a parole order.102 The Commission notes that the ethnic diversity of the community, and the nature of the prison population are reflected in the current appointments of community representatives, with one member from the Aboriginal community and another from a non-English speaking background. In the Commission’s observation of the Board’s deliberations, the participation of the community representatives is effective. It directly serves the objective of the parole system in highlighting the community’s interest in release decisions and community responsibility for the re-integration of offenders into community life.
7.55 The Sentencing Act 1989 requires only that the four community representatives “are to reflect as closely as possible the composition of the community at large”.103 There are no other guidelines as to the appropriate qualifications of such members, or as to what components of the community should be represented. There may be benefits from selecting more members with expertise in relevant professions or disciplines, such as psychiatrists, criminologists, penologists, or lawyers, or perhaps from appointing lay persons with an interest in corrections or rehabilitation. Such persons are required to be on the parole authorities elsewhere.104 The Commission considers that the addition of a private sector lawyer, in particular, would assist the Board in its deliberations. The Commission also raises the option of including among the community members a victim of crime who can bring this particular perspective of community thinking to the parole decision-making process.105
7.56 The Commission notes the difficulties in obtaining a representative range of community members for the Offenders Review Board. The duties of members demand full-time commitment, although remuneration is on a sessional basis. This necessarily reduces the pool of members of the community who are available for appointment. The Board expects this year that appointments will be made of community members who will not participate in the Board’s deliberations every week, but in a similar manner to the judicial members, sit less frequently in rotation.
7.57 The Commission’s view is that the existing composition of the Offenders Review Board, including the members reflecting the community at large, functions extremely well and efficiently in achieving the legislative objectives. We invite suggestions as to any improvements which could be made to the membership of the Board to strengthen the position.
Procedures of the Offenders Review Board
7.58 The procedure adopted by the Offenders Review Board to determine the eligibility of an offender for parole is essentially administrative, although incorporating features of the judicial process. The Board is under an obligation to observe the rules of natural justice and procedural fairness in all its decisions, both in the making and revocation of parole orders.106 The Court of Appeal has held that the procedures its predecessor, the Parole Board, had to follow were, subject to the exigencies of the particular case, to notify the offender of its intention to consider a decision, and of any material to be considered by it (save for any material which may be lawfully withheld), to permit the offender to make any relevant written submissions; and, to afford the offender an opportunity to be heard orally. A balance between the duty to observe procedural fairness and the practical difficulties (including economic costs) of proceeding in accordance with the dictates of the obligation has been struck. Principally, the Board achieves this by holding a review hearing in any instance where it intends to refuse parole, but where parole is granted, doing so by purely administrative action without the need for a hearing and its attendant costs. Subject to our comments on s 49 certificates, the Commission regards the current parole procedures in New South Wales as satisfying the requirements of natural justice.
Section 49 certificates withholding information
7.59 The absence of notification to the prisoner that documents available to the Board have been withheld under s 49107 represents one procedure which may limit procedural fairness for the offender. The Commission understands that a s 49 certificate is issued not infrequently. The Board’s practice is to inform the prisoner’s legal representative of the existence of a s 49 certificate and to give a brief indication of its nature.
7.60 The original proposals of the Muir Committee Report on this matter recommended that where information was withheld, the prisoner be informed of the general purport of the material relevant to consideration of release. Further, the Ombudsman should be empowered to investigate the completeness and accuracy of the information in the material.108
7.61 The Commission considers that a provision such as s 49 is a necessary precaution and that various competing interests will have to be balanced in determining whether to grant a certificate in any case. There are, however, potential problems with the operation of the provision. The major one relates to the offender’s right under s 23 (as to refusal) and s 41 (as to revocation) to apply to the Court of Criminal Appeal for a direction that the Board made a decision based on information that was false, misleading or irrelevant. In order to invoke this right, it is necessary for the offender, or at least his or her legal representative, to know the information before the Board. How this can occur if a s 49 certificate has been issued is a conundrum. The difficulty remains if, as the Commission proposes, the offender is entitled to a full administrative review of the Board’s decision.109 There being no review of the grant of a certificate, it is also difficult to determine whether it is being used unnecessarily on some occasions. The implementation of the suggestions in the Muir Committee Report110 may supplement the Board’s practice in this respect. The Commission invites comments on how the difficulty may be resolved.
Factors relevant to the parole decision
7.62 The Board is empowered to make a parole order, having regard to the public interest, only after it has considered “any ... relevant matter”.111 Clearly, this could include submissions from those potentially affected by the release of the prisoner - for example, those from the offender’s immediate community or those whom the offender has threatened. As a matter of policy, the Board considers written submissions from the victim or the victim’s family, and it is the practice to permit the victim to make a statement from the floor of the review hearing should this be desired. The Commission considers this is appropriate provided the prisoner has the opportunity of challenging such statements.112
DECISIONS GIVEN BY THE OFFENDERS REVIEW BOARD
7.63 When the Offenders Review Board refuses an application for parole, the presiding judicial member of the Review Hearing delivers an extemporaneous decision, usually brief, in which he or she adverts to the reasons on which the Board’s decision is based. A transcript of those remarks can be made and provided to the offender if required for an appeal under s 23 or as the basis for further applications. The written record of the refusal is recorded on the file and communicated to the prisoner in the manner reproduced at para 7.43.
7.64 The giving of reasons, or other than standard form reasons, has long been seen as a necessary feature of a fair and just parole procedure.113 The form in which reasons are officially communicated to the offender by the Offenders Review Board does not meet this criterion. It is vague, superficial and fails to address the individual offender’s situation. No doubt the notation indicates the aspects of the offender’s circumstances which give the Board reason to doubt his or her ability to serve the remainder of the additional term in the community without putting the community at risk, but in no way does it indicate specifically how the offender should change, or what would satisfy the Board so that it would grant parole. In practice, the categories of reasons gives the Board common ground for assessing the individual offender against others, and gives members a measure for reaching a collegiate decision about each offender. Administratively, too, there are advantages in relying on such an approach.
7.65 The Commission believes that the offender is entitled to full and proper reasons for refusal of parole. The Commission therefore proposes that the Board’s practice be amended so as to present in a more extensive manner the reasons for which its decision to refuse parole is made. The Commission proposes that in every case the oral decision containing the reasons for the Board’s refusal to grant parole should be transcribed and made available to the prisoner as a matter of course.
Review of the parole decision
7.66 The terms of reference require the Commission to consider whether there should be any review of the decisions of the Offenders Review Board by judicial officers.
Sections 23 and 41 of the Sentencing Act 1989
7.67 Currently there are extremely limited rights of review of a decision of the Offenders Review Board. Section 23 (1) of the Sentencing Act 1989 provides:114
If:
(a) the Board has decided ... that a prisoner should not be released on parole; and
(b) the prisoner alleges that the decision of the Board was made on information which was false, misleading or irrelevant,
the prisoner may, in accordance with rules of court, apply to the Court of Criminal Appeal for a direction to be given to the Board as to whether the information was false, misleading or irrelevant and the Court of Criminal Appeal may give such direction with respect to the information as it thinks fit.
Similar rights are given under s 41 where the Board has revoked a parole order.
7.68 The Court of Criminal Appeal has very limited powers under s 23 and 41.115 The section does not authorise an appeal on the merits of the decision.116 When an application is made under s 23, the Court is concerned only with the information which is before the Board and upon which the Board made its decision. The Court is not concerned with whether the Board’s procedures complied with the Act. The Court is not concerned with whether the Board’s decision is right or wrong, or whether the Board correctly interpreted or construed the information before it or gave the correct weight to it, or drew the correct inferences from the information. The Court may only direct the Board as to whether the information was false, misleading or irrelevant, and give further directions with respect to that information as it thinks fit.117 The practical limitations of s 23 and 41 were highlighted in McCamley v Offenders Review Board:
So far as the falsity of the information is concerned, the purpose of the two sections in question is to provide to prisoners the opportunity to obtain a ruling where further evidence becomes available which was not available to put before the Board. The Court will not - except perhaps in unusual circumstances - undertake a rehearing upon the material which was before the Board.118
7.69 There are relatively few cases in which an offender has applied to the Court for relief under s 23 or 41. It has been said “that the absence of any real utility in the present procedure has demonstrated that it is a failure”.119 The Commission proposes, therefore, that s 23 and 41 be repealed.
Appeal on the merits
7.70 The question of an appeal against the decision of a tribunal such as the Offenders Review Board involves different considerations from those associated generally with appeals against criminal or civil court judgments. The differences relate to the nature of the decision, the criteria on which it is based, and the strong element of community interest involved.
7.71 To provide full rights of appeal on the merits of a decision of the Offenders Review Board is, in the Commission’s view, not desirable. Should the potential for appeal in every case where parole is refused (or revoked) be realised, the system would rapidly become paralysed. In the absence of a provision such as s 23(2) discouraging frivolous applications being rigorously enforced, most offenders would be expected to take up such a right if afforded them. Extension of appeal to the Crown as proposed recently120 would make potentially greater demands on court resources.
7.72 More fundamentally, it must be remembered that the function of the Board is to assess whether, on the evidence available to them, the offender can demonstrate that he or she meets the criteria in the statute. Making that decision requires assessing risks, predicting future behaviour, balancing competing interests. Even though decisions directly affect the liberty of the subject, the public interest must have paramount consideration. The community-dominated Board is the appropriate final arbiter of the public interest.121
Administrative review
7.73 The Board must comply with the rules of natural justice in making its decisions.122 An allegation that the Board failed to comply with the rules of natural justice does not constitute a challenge to the decision on the merits, but solely on the procedural fairness of how the decision is made. The Commission considers that the possibility of administrative review of the Board’s decisions should be retained.123 It is likely, however, that given the exhaustive and rigorous procedures required by legislation and followed in the practices of the Board, the occasion for administrative review will be rare.
7.74 Currently administrative appeals from decisions of the Offenders Review Board would be a matter for an administrative appeal to the Supreme Court which would be heard by the Court of Appeal.124 It is understood that an Administrative Appeals Tribunal will probably be established in New South Wales in the near future. It may then be open to take such appeals to the tribunal, although, as a matter of policy, decisions by tribunals in the criminal justice system125 may well be excluded from its jurisdiction. The Commission considers that the most appropriate forum to hear an appeal from the Offenders Review Board is the Administrative Law Division of the Supreme Court. Amendments to the Supreme Court Act and Rules will be necessary to achieve this result.
Reconsideration after refusal of parole
7.75 When the Offenders Review Board refuses to make a parole order, the Act currently requires it to reconsider the matter within each successive year following the day on which the offender becomes eligible for release on parole.126 Further, a similar requirement seems to apply when parole has been revoked even though the offender has not been apprehended and returned to custody.127 The first of these provisions has been criticised as unnecessarily burdensome in certain cases; the second is patently unnecessary, or at least an unnecessary administrative procedure.128 The Commission suggests that the Board be able to defer consideration of parole for a period longer than twelve months in appropriate circumstances.129 Such circumstances should not include lack of resources.
7.76 As to offenders who have had parole revoked but who remain at large, the suggested change is incontestable. As for the other aspect of the proposal, there are good reasons for making such a change. For the majority of prisoners, who have a relatively short additional term during which their eligibility for parole will be assessed, this period is considered appropriate by the Board, and the Commission is not aware of any need to alter it. However, there are some, albeit a limited number of, serious offenders for whom this requirement may need to be changed. Some prisoners will demonstrate by conduct during the course of their incarceration, the lack of progress toward a lower security classification and access to day leave, or other subjective factors, that their circumstances are not likely to be significantly different within twelve months. In these cases, it is argued that the Board should have the power to defer consideration of whether to grant parole for a longer period. Such a power would relieve the Board of the need to conduct a review hearing in circumstances in which a decision that it would be in the public interest to grant parole would be extremely unlikely. The review requirement has also been criticised for provoking continual anxiety and apprehension for victims and their families who must annually anticipate the offender’s possible release into the community.
7.77 In the Sentencing Legislation (Amendment) Bill 1994 amendments to s 18 would have provided for the Board to decline to consider parole for up to three years or until an offender had returned to the prison system.130 This measure was denounced as harsh, unfair and unjustified, and one which would remove incentive for rehabilitation.131 The Commission considers that, on balance, it is desirable to confer on the Board the discretion to delay consideration of parole under s 18 of the Act. We consider that two years is, generally, an appropriate period or, in the case of revocation, 12 months after return to custody.
Proposal 21
The Offenders Review Board should be empowered to defer consideration of parole for up to two years after a refusal to make a parole order or, where a parole order has been revoked, 12 months after return to custody.
Length of parole supervision
7.78 A major concern for the Offenders Review Board is found in the Regulation which limits the supervision of an offender to three years.132 Where an offender has an additional term of greater than three years,133 the Offenders Review Board faces a dilemma should it wish to require supervision for a longer period than the Regulations permit. Indeed, it is not uncommon for judges specifying additional terms, especially redeterminations of life sentences under s 13A, to impose additional terms longer than three years because they consider a lengthy term of parole supervision is necessary. It could well be that the Board’s decision in such cases must be to refuse parole if the Board cannot be satisfied that the primary interest of the public cannot be served by release with a maximum period of supervision of just three years. The Board seeks removal of this restriction.134
7.79 It is argued, however, that in most cases, the efficacy of supervision is exhausted relatively quickly. Either the person re-offends, or settles into normal community life, and supervision becomes unnecessary. This would require that the term of supervision on parole should be limited, as it tends to be self-defeating and ineffective if it continues for too lengthy a period. In Western Australia the period of parole is set at a minimum of 6 months and a maximum two years135 to reflect the time within which the greatest benefits in terms of resocialisation and adjustment were likely to occur, and that longer periods may be counter-productive.136 The Commission recognises that there will be occasions in which a longer period of parole supervision than three years will be desirable. We are tentatively of the view that the Regulation should permit this by prohibiting the termination of a specified period of parole supervision in excess of three years without the approval of the Offenders Review Board. However, we seek submissions as to the results which would be likely to flow from amending the Regulation to allow for longer periods of parole supervision.
QUESTIONS ARISING IN CHAPTER 7
1. Should parole be retained?
2. Who should determine parole?
3. Should parole continue to be granted automatically in the case of offenders who are sentenced to three years or less? Or should the relevant sentence length be altered?
4. Should the Offenders review Board be renamed the Parole Board?
5. Should the criteria for granting parole in extenuating circumstances be amended?
6. Should there be changes to the way in which members of the Offenders Review Board are appointed to ensure their independence?
7. Is it appropriate to alter the composition of the Offenders Review Board to reflect relevant professional expertise, or victims’ representation?
8. Should the prisoner continue to bear the onus of persuading the Offenders Review Board that parole should be granted?
9. Are the criteria for granting parole adequate?
10. Generally, should any of the procedures of the Offenders Review Board be amended?
11. Is s 49 (withholding information from an offender) procedurally fair? How can it be successfully redrafted?
12. Should the Board make available to the offender a full statement of the reasons on which an application for parole is refused?
13. Should s 23 and 41 be repealed?
14. Should there be any review of a decision of the Offenders Review Board, on the merits or on administrative grounds? What forum should hear any appeal?
15. Should the Offenders Review Board be able to defer consideration of parole for more than twelve months? If so, in what circumstances?
16. Should parole supervision for longer than three years be possible?
FOOTNOTES
1. Sentencing Act 1989 (NSW) Sch 3 cl 8 repealing Prisons Act 1952 Part 11. See para 4.13.
2. Section 463 Crimes Act 1900 (NSW) repealed by the Prisons (Serious Offenders Review Board) Amendment Act 1989 (NSW). See para 4.66.
3. Sentencing Act 1989 (NSW) s 53. Clause IX of the current Letters Patent Constituting the Office of Governor of New South Wales, dated 29 October 1900, provides that the Governor may grant to any offender convicted in any Court of the State a pardon, whether free or subject to lawful conditions, or any remission of the sentence passed on such offender, or any respite of the execution of such sentence for such periods as the Governor thinks fit, and may remit any fines, penalties or forfeitures due or accrued to the Crown: see Smith v Corrective Services Commission [1980] 2 NSWLR 171 at 180 per Hope J; see also Kelleher v Parole Board (1984) 156 CLR 364.
4. The terms of reference are set out at p xiii.
5. S Mackey, “Parole - Background, Machinery and Statistics” in NACRO, Parole - The Case for Change, (London, 1979) at 8, quoted in The Report of the Royal Commission into New South Wales Prisons (NSW Govt Printer, Sydney, 1978) (the “Nagle Report”) at 602.
6. Sentencing Act 1989 (NSW) s 5-7.
7. G Egan, “Out But Not About: A Parole Board Perspective on Community Corrections”, Paper presented at the Conference on Community Corrections in the 21st Century, Brisbane, 3-4 July, 1995 at 2. The Commission saw examples of this in its observation of the Offenders Review Board.
8. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 10 May 1989, the Hon M R Yabsley, Minister for Corrective Services, Second Reading Speech, at 7905-7910.
9. See generally New South Wales, Parliamentary Debates (Hansard), Parole of Prisoners Bill Second Reading, Legislative Assembly 20 September 1966 at 972-993; Legislative Council 22 September 1966 at 1083-1099, 27 September 1966 at 1141-1159.
10. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 20 September 1966, The Hon J Maddison, Minister of Justice, Second Reading Speech, at 975.
11. The motivations for the introduction of parole in England at the same time were similarly mixed and not made clear: see Great Britain, Parliament, House of Commons, The Parole System in England and Wales: Report of the Review Committee (November 1988) (the “Carlisle Report”) paras 18-22; N Morgan, “The Shaping of Parole in England and Wales” [1983] Criminal Law Review 137.
12. See J B L Chan, Doing Less Time: Penal Reform in Crisis (Institute of Criminology, Sydney, 1992) at Ch 1. The brutality of prisons in New South Wales became a political issue in the 1970s: see generally the Nagle Report; G Zdenkowski and D Brown, The Prison Struggle: Changing Australia’s Penal System (Penguin, Ringwood, 1982).
13. Hansard, Legislative Assembly, 20 September 1966, at 975.
14. As to the methodology of this allocation and the Commission’s proposal concerning repeal of s 5(2) and (3) see paras 4.18-4.41.
15. See R v Moffitt (1990) 20 NSWLR 114 at 120 per Wood J.
16. Moffitt at 121 per Wood J.
17. Canada, The Criminal Law in Canadian Society (Ottawa, August 1982) at 34.
18. R Broadhurst, “Evaluating Imprisonment and Parole: Survival Rates or Failure Rates” in S McKillop (ed) Keeping People out of Prison, proceedings of a conference held 27-29 March 1990 (Australian Institute of Criminology, Canberra, 1991) at 25.
19. See R Martinson, “What Works?: Questions and Answers about Prison Reform” (1974) 10 The Public Interest 22, and the lesser known subsequent article in which the author admitted that he had oversimplified his views on the subject, “New Findings, New Visions” (1979) 7 Hofstra Law Review 43. See also A von Hirsch, Doing Justice: The Choice of Punishments (Hill & Wang, New York, 1976); A von Hirsch and K J Hanrahan, The Question of Parole: Retention, Reform or Abolition? (Ballinger, Cambridge, Mass, 1979).
20. South Australia, Criminal Law and Penal Methods Reform Committee of South Australia, First Report: Sentencing and Corrections (Adelaide, 1973) (the “Mitchell Report”); Nagle Report; A G Muir, The Report of the Committee Appointed to Review the Parole of Prisoners Act 1966, (NSW Government Printer, Sydney, 1979) (the “Muir Report”); K H Parker, Report on Parole, Prison Accommodation and Leave from Prison in Western Australia (February, 1979) (the “Parker Report”) and the Australian Law Reform Commission Sentencing of Federal Offenders (ALRC 15, 1980).
21. Muir Report, A Minority Report by Mr Kenneth Lukes, at 61-66.
22. ALRC 15 at para 344.
23. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) at paras 72, 97-98, and Australian Law Reform Commission, The Commonwealth Prisoners Act (ALRC 43, 1987).
24. Australian Law Reform Commission, Sentencing: Penalties (DP 30, 1987) at para 220.
25. See Canada, Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Canadian Government Publishing Centre, 1987) at 233-245.
26. See S Benzvy-Miller, “Integrating Sentencing and Parole” (1990) 32 Canadian Journal of Criminology 493 at 494; Canada, Directions for Reform: Sentencing (1990) at 9.
27. See D Daubney, Taking Responsibility - Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections (Ottawa, 1988).
28. See Canada, Department of Justice, Directions for Reform: Sentencing (Ottawa, 1990) at 9-11; Canada, Directions for Reform: A Framework for Sentencing, Corrections and Conditional Release (Ottawa, 1990).
29. See Nagle Report at Chapter 30; Muir Report; Australian Law Reform Commission, Sentencing of Federal Offenders (ALRC 15, 1980) Chapter 9; Australian Law Reform Commission, Sentencing: Penalties (DP 30) at paras 202-241; Canada, Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Canadian Government Publishing Centre, 1987) at Chapter 10; Carlisle Report; Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988) Vol 2 at 662; Parker Report.
30. Parker Report at 3-4.
31. M R Gottfredson and K Adams, “Prison Behavior and Release Performance: Empirical Reality and Public Policy” (1982) 4 Law & Policy Quarterly 373 at 374.
32. M R Geerken and H D Hayes, “Probation and Parole: Public Risk and the Future of Incarceration Alternatives” (1993) 31 Criminology 549.
33. See P Ward, Sentencing, Parole & Recidivism, (Department of Corrective Services, Research Publication 1, 1982); A Gorta, G Cooney, L George, and S West, 250 Parolees: Characteristics and Performance (Department of Corrective Services, Research Publication No 3, 1982); A Gorta and G Cooney, “What Makes a Good Parolee?” (1983) 16 Australia and New Zealand Journal of Criminology 106; B Thompson, “Comparison of Recidivism Rates for Prisoners Released to Licence, Parole or Remission in NSW 1981 to 1983”, paper presented at the 5th Annual Criminology Conference of the Australian and New Zealand Society of Criminology, Sydney, June 1989; B Thompson, Recidivism in NSW: General Study (NSW Department of Corrective Services, Research Publication No 31, May 1995).
34. Advice to the Commission from the Department of Corrective Services, Research & Statistics Unit, November 1995.
35. R Broadhurst and R Maller, “The Recidivism of Prisoners Released for the First Time: Reconsidering the Effectiveness Question” (1990) 23 Australia and New Zealand Journal of Criminology 88.
36. South Australia, Department of Correctional Services & Office of Crime Statistics, The Impact of Parole Legislation Change in South Australia, (Social Issues No 2, August 1989).
37. See, eg, R G Hann, W G Harman and K Pease, “Does Parole Reduce the Risk of Reconviction?” (1991) 30 The Howard Journal 66; M Geerken and H D Hayes, “Probation and Parole: Public Risk and Future Incaceration Alternatives” (1993) 31 Criminology 549.
38. See paras 7.32-7.40.
39. Victoria, Attorney-General’s Department, Sentencing: Report of the Victorian Sentencing Committee (Melbourne, 1988). The Report did recommend that the guidelines of the Parole Board be published. See also Victoria, Sentencing Alternatives Committee, Parole and Remissions: Second Report (1982).
40. Western Australia, Parliament, Report of the Joint Select Committee on Parole (Perth, August, 1991) (the “Halden Report”). See also, the Parker Report dealing with administration of parole, and the Western Australia, Report of the Committee of Inquiry into the Rate of Imprisonment, (Perth, May 1981), (the “Dixon Report”).
41. Carlisle Report.
42. See paras 1.3, 1.9.
43. The judge could be assisted in this role by a parole board whose recommendations the judge would reconsider or review.
44. South Australia, Criminal Law and Penal Methods Reform Committee, First Report: Sentencing and Corrections (Government Printer, Adelaide, 1973) (the “Mitchell Report”) para 7.4ff. See ALRC DP 30 para 226. Sir Richard Blackburn, a former Chief Justice of the ACT Supreme Court, has also suggested that the original sentencing Judge should later decide whether to release the offender conditionally: see ALRC Sentencing: Penalties (DP 30, 1987) para 226.
45. Judicial officers are usually required to head parole authorities in recognition of this situation.
46. See Mitchell Report para 7.4.4.
47. Sentencing Act 1989 (NSW) s 17(1).
48. Offenders Review Board Submission (11 October 1995) at 3.
49. See Nagle Report Chapter 30, 608-618, Recommendation 210; Muir Report Chapter 5, Recommendations 12-25. As to where to set the threshold, see Carlisle Report paras 254-298.
50. See Carlisle Report para 186.
51. Sentencing Act 1989 (NSW) s 45(1).
52. Either a District Court judge or a retired Supreme or the District Court judge: Sentencing Act 1989 (NSW) s 45(2)(a). It has been the practice to appoint retired District Court Judges to the Offenders Review Board.
53. Sentencing Act 1989 (NSW) s 45(2)(b).
54. As at February 1996.
55. Sentencing Act 1989 (NSW) Sch 1 cl 2, cl 13, cl 15. The provision providing for a casting vote is rarely used in practice, as the Board strives to reach decisions by consensus.
56. Sentencing Act 1989 (NSW) Sch 1 cl 16, 17. Only one judicial member is scheduled to attend Board meetings and Hearings each week.
57. Sentencing Act 1989 (NSW) see generally s 26-41.
58. And also to constitute a break with the previous system: New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 10 May 1989 at 7909.
59. Sentencing Legislation (Amendment) Bill (NSW) Sch 1 cl 13, 14; Hansard, Legislative Assembly, 27 October 1994.
60. Offenders Review Board, Submission (11 October, 1995) at 7.
61. See G Egan, “Independent and Intimate: the Serious Offenders’ Review Board” in S-A Gerull and W Lucas (eds), Serious Violent Offenders: Sentencing, Psychiatry and Law Reform Proceedings of AIC Conference, Canberra, 29-31 October 1991 (1993) at 159.
62. Prisons Act 1952 (NSW) s 62. It inherited its core functions from a series of bodies which can be traced through the Indeterminate Sentence Committee (within the Department of Corrective Services), the Release on Licence Board (1983-1989) and the Serious Offenders Review Board (1990-1993).
63. The Community Protection Committee established in late 1994 advises the Council about release of nominated prisoners: Serious Offenders Review Council, Annual Report 1994 at 13.
64. See Prisons Act 1952 (NSW) s 22C-22F.
65. See para 11.10.
66. Serious Offenders Review Council, Submission (9 October) 1995 at 6.
67. Prisons Act 1952 (NSW) s 61. As with the Offenders Review Board, the judicial members may be either a Judge of the District Court or a retired Judge of the Supreme Court or the District Court. In practice, retired District Court Judges have been appointed.
68. Prisons Act 1952 (NSW) Sch 5 cl 5.
69. The Director of Inmate Classification and Placement, and the Superintendent, Prison Operations.
70. Serious Offenders Review Council, Annual Report 1994 at 13.
71. Prisons Act 1952 (NSW) s 63. Members are the two SORC official members and the Head of Psychological Services, the Principal of Inmate Education, the Head of Drug and Alcohol Services and the Manager of Prisoner Classification and Placement.
72. Sentencing Act 1989 (NSW) s 18(1).
73. Sentencing Regulation 1989 (NSW) cl 8(5)(a).
74. Sentencing Act 1989 (NSW) s 17(1)(b).
75. Sentencing Act 1989 (NSW) s 17(1)(d).
76. For example, reports about the offender’s potential residential location.
77. See Chapter 11.
78. See below para 7.38.
79. Sentencing Act 1989 (NSW) s 17(1)(f).
80. See paras 7.59-7.61.
81. The Board may otherwise note the breach, note and request a progress report, warn, or monitor the parolee.
82. Sentencing Act 1989 (NSW) Sch 1 cl 11(3).
83. Provided by the Prisoners’ Legal Service of the Legal Aid Commission in most cases, or by the Aboriginal Legal Service or counsel privately engaged.
84. Sentencing Act 1989 (NSW) Sch 1 cl 19.
85. Sentencing Act 1989 (NSW) s 18(1)(b).
86. Prisons Act 1952 (NSW) s 63(b).
87. Sentencing Act 1989 (NSW) s 19A.
88. Offenders Review Board, Submission (11 October 1995) at 3.
89. See Sentencing Act 1989 (NSW) s 24.
90. Sentencing Act 1989 (NSW) s 17(1).
91. The Nagle Report postulated the fundamental principle that, wherever possible, it is preferable to have a prisoner in the community than in gaol, and formulated the question to be asked by the Parole Board to be ‘are there any reasons why this prisoner should not be able to adapt to a normal community life?’ (at 609): Probation and Parole Act 1983 (NSW) s 26, although the Act was amended in 1987 to reverse the presumption in the case of serious offences, s 26A.
92. But see paras 7.64-7.65 for the recommendations of the Commission.
93. Sentencing Act 1989 (NSW) s 25A.
94. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 30 November 1989, the Hon J Dowd, Attorney General, at 14056.
95. Offenders Review Board, Annual Report 1994 at 10.
96. Sentencing Act 1989 (NSW) s 53 and s 50(2). See Kelleher v Parole Board (1984) 156 CLR 364.
97. New South Wales, Attorney General’s Department, Sentencing Review (Sydney, June 1994) at 15.
98. See “Minister Accused of Parole Board Interference”, Sydney Morning Herald 12 June 1992 at 4. The Minister for Justice confirmed that he was concerned and disappointed at a decision, and that the four community representatives would not be reappointed for a second term: “Minister Slams More Parole Board Decisions”, Sydney Morning Herald 13 June 1992 at 5.
99. For example, Canada, England.
100. See the view expressed in A Nicholson, “The Future of Parole” in D Biles (ed), Current Trends in Corrections (Federation Press and AIC, Sydney, 1988) 45 at 46.
101. Offenders Review Board, Submission (11 October 1995) at 1.
102. Sentencing Act 1989 (NSW) s 17(1)(a).
103. Sentencing Act 1989 (NSW) s 45(2)(b).
104. United Kingdom, Canada, South Australia.
105. Some appointments to the Serious Offenders Review Council have drawn from this section of the community.
106. See Baba v Parole Board of New South Wales (1985) 5 NSWLR 338; Todd v Parole Board of New South Wales (1986) 6 NSWLR 71. See also Johns v Release on Licence Board (1979) 9 NSWLR 103.
107. See para 7.34.
108. Muir Report Recommendations 39, 40.
109. See paras 7.73-7.74.
110. See para 7.60.
111. Sentencing Act 1989 (NSW) s 17(1)(f). See para 7.41.
112. See para 11.69.
113. See for example, Muir Report Chapter 9.
114. Recently, extension of a similar right of review to the Crown over Board decisions relating to serious offenders was proposed. The Sentencing Legislation (Amendment) Bill 1994 provided, in terms identical with s 23, that an application could be made to the Court of Criminal Appeal by the Attorney General or the Director of Public Prosecutions should either allege that the Board made a decision based on information that was false, misleading or irrelevant. The Attorney General or the Director of Public Prosecutions would also have been given a right first to request the Board to revoke the Parole order of a serious offender on the grounds that it was made on false, misleading or irrelevant information, and then to approach the Court of Criminal Appeal if the Board refuses the initial application: Sentencing Legislation (Amendment) Bill 1994 (NSW) Sch 1 cl 10 inserting s 34A into the Sentencing Act 1989 (NSW); and cl 11 inserting s 41A. The Bill, which passed the Upper House, lapsed with the dissolution of Parliament before the election in March 1995.
115. See McCamley v the Offenders Review Board (NSW CCA, No 60703/93, 9 February 1994, unreported).
116. McPherson v Offenders Review Board (1991) 23 NSWLR 61.
117. Examples of directions may be to require the Board to reconsider the information in the light of the evidence adduced to the (appeal) Court; to direct the Board to make certain specific enquiries and to reconsider the information in the light of the results of those inquiries: McCamley v Offenders Review Board at 12 per Allen J.
118. McCamley v Offenders Review Board at 3 per Hunt CJ at CL.
119. McCamley v Offenders Review Board at 10 per Hunt CJ at CL.
120. Sentencing Legislation (Amendment) Bill 1994 (NSW) Sch 1 cl 9.
121. See also the determination of parole by a judge: see paras 7.19-7.23.
122. See para 7.58 and the cases cited there.
123. See also Attorney General’s Sentencing Review at 42-43.
124. Supreme Court Act 1970 (NSW) s 48(1)(a)(vii), Sentencing Act 1989 (NSW) Sch 1 cl 11(5): see McCamley v Offenders Review Board at 2 per Hunt CJ at CL.
125. The Offenders Review Board and the Mental Health Review Tribunal.
126. Sentencing Act 1989 (NSW) s 18(1)(b).
127. Sentencing Act 1989 (NSW) s 18(1)(c).
128. Offenders Review Board, Submission 11 October 1995 at 7.
129. Offenders Review Board, Submission 11 October 1995 at 7. See Sentencing Legislation (Amendment) Bill 1994 (NSW) Sch 1 cl 5, inserting s 18(3), (4).
130. Sentencing Legislation (Amendment) Bill 1994 (NSW) Sch 1 cl 5.
131. New South Wales, Parliamentary Debates (Hansard), Legislative Council 17 November 1994, the Hon I M Macdonald, quoting from a letter from David Fairlie, President, Law Society of NSW at 5209.
132. Sentencing Regulation 1989 (NSW) cl 8(4).
133. There are approximately 400 such prisoners in custody at present: Offenders Review Board, Submission 11 October 1995 at 6.
134. Offenders Review Board, Submission 11 October 1995 at 6-7.
135. Sentence Administration Act 1995 (WA) s 22.
136. Halden Report at 83.
