Prisoners are only released on parole if a non-parole period has been set by the sentencing court. Where a person is sentenced to a period of imprisonment of one year or more, the sentencing court must, when passing sentence, set a minimum period that must be served before the prisoner can be released on parole (unless the sentencing court considers there is good reason not to) [Sentencing Act 2017 (SA) s 47(5)(e)]. The prisoner is then eligible for parole at the end of the period.
The parole system is designed:
- to allow for the early release of prisoners
- to assist prisoners to move back to life in the general community with the supervision and advice of their parole officers
- to assist prisoners to move away from a life of crime when back in the community.
A person who commits an offence while on parole risks being sent back to prison to serve the balance of the original sentence (that is, the balance of that sentence remaining as at the day the new offence was committed) [see Correctional Services Act 1982 (SA) s 74].
Automatic or by application
Prisoners serving sentences of less than five years are usually entitled to be released on parole automatically at the end of the non-parole period [see Correctional Services Act 1982 (SA) s 66(1)]. Some prisoners serving sentences of less than five years still have to apply to the Parole Board for release on parole, such as those serving a part of their imprisonment in relation to:
- offences committed while on parole [s 66(2)(aa)];
- serious firearms offences for which they have been deemed or declared a serious firearms offender [s66(2)(aca)];
- a sexual offence [s 66(2)(a)];
- an offence of personal violence (as defined in the Act) [s 66(2)(ab)];
- an offence of arson under section 85 of the Criminal Law Consolidation Act 1935 (SA) [s 66(2)(ac)];
- breach of parole conditions under section 74 of the Act [s 66(2)(ad)]; and
- terrorism, where the prisoner is a terror suspect as defined in section 4(4) of the Correctional Services Act 1982 (SA).
However, whether release on parole is automatic or by application, only prisoners who accept the conditions of parole fixed by the Parole Board will be released on parole [Correctional Services Act 1982 (SA) s 68(4)].
The Parole Board of South Australia
The Parole Board consists of nine members, who must include:
- a judge or a retired judge of the Supreme or District Court or legal practitioner or a person who has extensive knowledge of, and experience in, criminology or penology
- a medical practitioner who has extensive knowledge of, and experience in, psychiatry
- a person who has extensive knowledge of, or experience in, criminology, sociology or other related sciences
- a person who has extensive knowledge of, or experience in, matters related to the impact of crime on victims and the needs of victims in the criminal justice system;
- a former police officer;
- a person of Aboriginal descent;
- both men and women.
See Correctional Services Act 1982 (SA) s 55.
An officer of the Department for Correctional Services is not eligible to be appointed as a member of the Board [s 55(4)].
A person appearing before the Parole Board is entitled to have legal representation [s 77(3)].
Parole conditions - all prisoners
The Parole Board sets the parole conditions that a prisoner must accept before being released on parole. Under section 68 of the Correctional Services Act 1982 (SA), all prisoners are be subject to the following conditions:
- that they do not commit any offence
- that they do not possess an offensive weapon unless permitted by the Parole Board; and
- that they be under the supervision of a community corrections officer and obey the officer's reasonable directions.
The Parole Board may recommend any other conditions, including monitoring by electronic device.
Parole conditions - those serving life imprisonment
Prisoners who are released on parole but are serving life imprisonment are also subject to the following conditions [s 68]:
- that they do not possess any firearm or ammunition or part of the same
- that they surrender any firearm or ammunition or part of the same owned or possessed by them [s 68A]
- that they submit to gunshot residue testing as reasonably required by their community corrections officer.
Breach of these conditions results in automatic cancellation of parole s 68(2a).
Those released on parole serving life imprisonment may also be subject to conditions for up to one year that they:
- reside at particular premises [s 68(1)(b)(i)(A)]; and
- undertake particular activities and programs as set by the Parole Board [s 68(1)(b)(i)(B)].
Variation, revocation or suspension of parole conditions
Once released on parole a person may apply to the Parole Board for a variation (change) in or the revocation (ending) of, the parole conditions [s 71(1)]. The Parole Board may discharge a person completely from parole if it thinks fit, but cannot if the person is subject to a life sentence [ s 72(1)]. Before varying or revoking parole, the Parole Board must first obtain a report from the Chief Executive.
If a person becomes a terror suspect (as defined in section 4(4) of the Correctional Services Act 1982 (SA) while on parole, a warrant of arrest must be issued and a determination made by the Parole Board as to whether the person will continue on parole, or whether their parole will be cancelled and they will be liable to serve the balance of the sentence(s) in prison [Correctional Services Act 1982 (SA) s 74B]. The decision of the Parole Board must take into account any relevant submissions of a terrorism intelligence authority [s 77AA].
Apprehension for breach of parole
Where the presiding or deputy presiding member of the Parole Board reasonably suspects that a person has breached a parole condition, those members may either:
- summon the person to attend before the Parole Board; or
- issue a warrant to bring the person before the Parole Board.
See Correctional Services Act 1982 (SA) s 76(1).
If another member of the Parole Board reasonably suspects that a person has breached a parole condition, they may either [s 76(2)]:
- summon the person to attend before the Parole Board; or
- apply to the presiding or deputy presiding members or a Magistrate for a warrant for the person's arrest.
If the Chief Executive of the Department for Correctional Services or a police officer reasonably suspects that a person has breached a parole condition, they may apply to the presiding or deputy presiding member or a Magistrate for a warrant for the person's arrest [s 76A(1)].
If a police officer reasonably suspects that a person has breached a parole condition (in a way that is not trivial and is continuing), they may arrest the person without a warrant on the authorisation of a police officer above the rank of Inspector, take them to the nearest police station and notify the presiding or deputy presiding members of the Parole Board or a Magistrate [s 76B].
The Board must conduct a hearing to determine if a condition of parole has been breached. The person accused of the breach of parole is entitled to legal representation at the hearing [s 77(3)].
Consequences of breach of parole
A person is also automatically liable to serve the balance of their sentence if an offence is committed while they are on parole and it results in a further sentence of imprisonment being imposed [see Correctional Services Act 1982 (SA) s 75]. The only other conditions, which if breached, are designated to result in the automatic cancellation of parole are those relating to the possession of firearms or ammunition and gunshot residue testing [see s 68(2a)]. A person returned to prison automatically whose remaining sentence is one year or more, may apply to have a new non-parole period fixed by the court [see Sentencing Act 2017 (SA) s 47].
The parole period is suspended if a person is returned to prison for an offence committed before their release on parole i.e. not as a result of a breach of parole conditions and cancellation [see Correctional Services Act 1982 (SA) s 74A].
There is no longer any automatic cancellation of parole for the breach conditions otherwise designated by the Parole Board. Instead, the Parole Board may now cancel parole in the case of the breach of any parole conditions and direct that the person serve the balance of their sentence (the balance as at the date of the breach) [see s 74(1)]. Likewise, instead of the previous restriction of community service to breaches of conditions which are not designated, the Parole Board may now impose a further condition that the person perform community service in the case of the breach of any parole conditions (even those that may have formally been designated and led to cancellation) [s 74AA].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.