Sentences


How long must a prisoner stay in prison?

At the trial, the judge sets the term of the sentence. In many cases, this includes both a maximum and a minimum term, before which the convicted person may not be released on parole. A term of imprisonment of 12 months, but less than two years, permits the sentencing court’s discretion to impose a non-parole period. For sentences longer than two years, a court should impose a non-parole period unless there is very good reason not to do so.

Prisoners sentenced after 22 April 1992 are not entitled to remissions and are not eligible for parole until they have served the minimum term of their sentence.

The release dates of prisoners sentenced before 22 April 1992, other than those sentenced for murder, are calculated taking into account the remission that a prisoner is entitled to under the provisions of section 60 of the Corrections Act (in effect, one-third of the minimum sentence).

Section 18 of the Sentencing Act provides that time spent in custody prior to conviction (remand) must be referable to (connected to) the particular offence(s) for which the prisoner is remanded in custody. Credit of time also applies to time served on remand for those sentenced before 22 April 1992.

Parole

A prisoner who has served the minimum time (less any remissions where applicable) becomes eligible for release on parole (s 74 Corrections Act). Prisoners do not need to apply for parole. Their situation is automatically reviewed before they have served the minimum term of their sentence.

Adult Parole Board

The Corrections Act established the Victorian Adult Parole Board (APB), its composition, functions, powers, and its decision-making principles. The Corrections Act (s 61(2)) sets out the composition of the APB. Currently, the APB is comprised of 13 judicial members and 13 community members.

The APB is not responsible for preparing prisoners for parole, or for supervising and managing them while they are on parole. The APB also does not have an investigative function. Rather, the APB is a decision-making body that relies on information provided to it (mostly by Corrections Victoria) to make decisions.

The APB has very broad discretionary powers to grant parole or not, and to determine what parole conditions to apply. The Corrections Act (s 83A) provides for a range of mandatory terms and conditions that apply to any parole order. The APB also has the power to impose other terms and conditions to the parole order (s 83B).

Following some high-profile cases of offenders committing offences while on parole, the decision-making criteria for granting parole has changed. Section 73A of the Corrections Act now requires the APB to have “safety and protection of the community” as the “paramount” consideration in deciding any question related to parole.

In addition, the APB has a Serious Violent Offender or Sexual Offender Division (SVOSO Division). The SVOSO Division determines the eligibility of sexual offenders and serious violent offenders for parole. The SVOSO Division may only grant parole to a person convicted of a sexual offence or serious violent offence if, and only if, another division of the APB has recommended the prisoner be granted parole. The SVOSO Division may refuse to grant parole even if another division of the APB has recommended the granting of parole. This, in effect, provides for a further “check and balance” on parole decision-making to ensure – and consistent with the priority given to public safety – that high-risk offenders are not released prematurely.

In addition, a new offence – punishable by a maximum term of imprisonment of three months – has been introduced for offenders who breach a “prescribed” term or condition of a parole order.

In exercising its functions the APB is not bound by the rules of “natural justice” (seeNatural justice” in Appealing government and administrative decisions). Legal representatives do not have standing to appear on behalf of prisoners before the APB.

A prisoner dissatisfied by a decision of the APB may challenge the decision via judicial review in limited circumstances (see Fletcher v Secretary to the Department of Justice [2006] VSC 354 at [27]–[41] per Justice Gillard).

Adult Parole Board’s Post-sentence Authority

On 27 February 2018, the APB’s Detention and Supervision Order Division became the Post-sentence Authority. The Post-sentence Authority oversees the post-sentence scheme, which allows for the ongoing detention and supervision of serious sex offenders and serious violent offenders who pose an unacceptable risk to the community after being released from prison. For more information about the Post-sentence Authority, visit www.postsentenceauthority.vic.gov.au.

Youth Parole Board

The Youth Parole Board (YPB) was established by the Children, Youth and Families Act 2005 (Vic) (s 442). The YPB comprises a County Court judge, two community members (one of whom must be female), and one person from the Department of Justice.

The YPB has jurisdiction over all young people who have been sentenced by a court to a period of detention in a youth justice custodial centre. The YPB also has jurisdiction over young prisoners who have been transferred by the APB from an adult prison to a youth justice centre.

Parole allows young people on a youth justice centre order (15–20 year olds) or on a youth residential centre order (10–14 year olds) to serve part of a custodial sentence in the community. Young people on parole are supervised by parole workers at regional youth justice units.

Other factors that can affect a sentence

Calling in fines

Prisoners can call in outstanding warrants while in custody. This is done by the prisoner filling in a form with the assistance of a correctional officer, which is then sent to the Sheriff’s Office. There are two types of warrants:

1 warrants to arrest issued by a court; and

2 warrants issued through Fines Victoria.

Warrants to arrest do not carry a default period. The case must be relisted before a Magistrates’ Court to convert it to a default period of imprisonment.

Under the Sentencing Act, any term of imprisonment imposed in default of payment of a fine must, unless otherwise ordered by the court, be served cumulatively with any other term of imprisonment imposed for default of payment.

The magistrate can decide whether the default period is served concurrently or cumulatively on any other term of imprisonment (s 16(2)). If a decision is made that any time in lieu of payment of a fine be served cumulatively on the sentence, the prisoner’s release date will be altered. Other options exist for fine conversion, such as to a community based order or to allow time to pay.

Warrants through the infringements system carry a default period. However, the Sheriff’s Office can not deem infringement warrants served until it has been established that the prisoner has no seizable assets. If it is established that the prisoner has no seizable assets while the prisoner is in custody, the Sheriff’s Office can then consider the warrants to be served concurrently with an existing sentence. (See also Fines and infringements.)

Pre-sentence detention

Pre-sentence detention is the time an offender spends in custody after being charged with an offence and before being sentenced. In general, this time must be taken into account and deducted from a sentence of imprisonment or detention. This general rule is subject to exceptions.

When a prisoner is being sentenced, it is important that they tell their lawyer or the court how much time they have spent on remand or police custody. This is to ensure that the amount of time a prisoner has spent in custody is accurately recorded and included in pre-sentence detention calculations.

Section 18 allows an incorrect declaration to be corrected, with confirmation of the time spent in custody, if the sentencing magistrate or judge makes the necessary declaration.

A sentencing court has in inherent jurisdiction at common law to take pre-sentence detention into account when sentencing an offender. This is called the “Renzella discretion” (see Renzella [1997] 2 VR 88). If the court exercises that power, the pre-sentence detention should be taken into account at the first opportunity. The basis for exercising this inherent power is to avoid an injustice to the offender.

It is important for a prisoner, during the reception phase of entering a prison, to ensure that they are informed of their earliest eligible release date. By doing so, they can establish whether or not their pre-sentence detention has been taken into account. If pre-sentence detention has not been credited, a prisoner should contact their lawyer, so that the matter can be relisted before the court that imposed the sentence.

A court can correct a declaration of pre-sentence detention (i.e. change the recorded amount of time a person spent in pre-sentence detention) and amend the sentence accordingly (s 18(7) Sentencing Act).

Every court also has inherent jurisdiction to correct a judgment or order that, due to an error, does not give effect to the court’s intention (see R v De Zylva (1988) 38 A Crim R 207; R v Saxon [1998] 1 VR 503. See also CMG v R (2013) 46 VR 728; [2013] VSCA 243).

Emergency management days

Section 58E of the Corrections Act and regulation 78 of the Corrections Regulations give Corrections Victoria the authority to grant emergency management days (EMDs) under specified circumstances to reduce a prisoner’s non-parole period or, if one has not been fixed, a prisoner’s sentence.

The “specified circumstances” include an industrial dispute or emergency, or circumstances of an unforeseen or special nature. Whether or not an incident or circumstance is regarded as an emergency or an unforeseen or special circumstance depends on the event’s context. As such, this is a discretionary decision made by the DJR Secretary.

Industrial dispute or emergency

If an industrial dispute or emergency in a prison means that prisoners are not able to be in the open air for at least an hour each day, as is their right (s 47(1)(a) Corrections Act), the DJR Secretary may grant EMDs. The number of days granted must not exceed four for each day or part of a day on which the industrial dispute or emergency exists (reg 78 Corrections Regulations).

It has been the past practice of correctional administrators to interpret the regulations about EMDs narrowly, adopting a definition of circumstances of an “unforeseen or special nature” that appeared to give little weight to the deprivation suffered by prisoners. Traditionally, what constituted an “emergency” has been restricted to events that occur outside the prison, that were not in existence at the time of sentencing, and that cannot be dealt with by a special visit (reg 78). The result was that when incidents occurred within the prison – such as lockdowns for security reasons – prisoners would not receive EMDs.

For example, in Anderson v Pavic [2005] VSCA 244, the Court of Appeal rejected a prisoner’s request for EMDs due to both a lockdown for a complete search of the prison, and disruption to the prisoner when his classification was changed and he was transferred.

Unforeseen or special circumstances

EMDs may be granted where circumstances have arisen of an unforeseen or special nature. This may include where a prisoner’s conduct has been exceptional or meritorious (e.g. saving a life, fighting a fire), or where a prisoner wishes to care for family members after the death of a spouse or other family member (only in the final days of a prisoner’s sentence). The DJR Secretary may grant up to 14 EMDs in unforeseen or special circumstances (reg 78 Corrections Regulations).

Granting emergency management days

The DJR Secretary grants EMDs. The number of EMDs is limited to four days for each day (or part of a day) on which an industrial dispute or emergency occurred, and 14 days for unforeseen or special circumstances.

To apply for EMDs, prisoners must fill-in the EMD application form. The application is given to the general manager of the particular prison, who must advise the prisoner whether or not they support the application within 14 days of receiving it. The application is then sent to the regional director or deputy director (for prisoners in public prisons), or to the Deputy Commissioner of Operations (for prisoners in private prisons). The Commissioner makes the final decision of whether or not to grant the application. The prisoner is advised of the Commissioner’s decision in writing. Each prison must maintain an EMDs register that records all EMD applications and decisions.

Release on licence (federal offenders)

This relates to prisoners serving sentences for Commonwealth offences. The Commonwealth Attorney-General (or a delegate) may release a federal prisoner on licence under section 19AP of the Crimes Act 1914 (Cth) (“Crimes Act (Cth)”) in exceptional circumstances that justify releasing the prisoner early.

The Crimes Act (Cth) does not define “exceptional circumstances”. However, factors that may be considered are set out in subsection 19AP(4) of the Crimes Act (Cth); these factors include:

the prisoner’s cooperation with law enforcement agencies before they were sentenced – and this cooperation was not taken into account by the sentencing court; or

the prisoner’s cooperation with law enforcement agencies after they were sentenced; or

the prisoner has a serious medical condition that cannot be adequately be treated/managed in prison.

An application for a release on licence must be in writing and should specify the exceptional circumstance that justify the grant of the licence.

Continued detention and supervision for violent and serious sex offenders

The Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) (“SSODS Act”) provided a post-sentence scheme for the preventative supervision and continued detention of sexual offenders who had served custodial sentences for certain serious sex offences and who continued to pose an unacceptable risk of harm to the community. The SSODS Act came into effect on 1 January 2010.

In 2018 the SSODS Act was repealed and replaced by the Serious Offenders Act 2018 (Vic) (“SO Act”). The SO Act commenced on 3 September 2018.

Serious Offenders Act 2018

The SO Act retains much of the post-sentence scheme contained in the SSODS Act, but expands the scheme to include offenders who have committed certain serious violence offences.

The SO Act has given effect to many of the recommendations of the Review of Complex Adult Victim Sex Offender Management, led by Justice David Harper.

The SO Act provides a new emergency detention order for offenders on a supervision order to be detained in prison for up to seven days. The SO Act also allows for offenders on a supervision order to receive intensive treatment in a new secure residential facility, the Rivergum Residential Treatment Centre.

The SO Act largely retains the SSODS Act’s provisions relating to applications for interim orders. Interim orders apply where an application for a supervision or detention order is waiting to be heard, but before the application can be determined, the person is due to be released from custody, or their existing order is due to expire.

Supervision orders

The core conditions of a supervision order and a number of discretionary conditions under the existing scheme will continue but are updated in the SO Act. The SO Act inserts a new clause to stipulate that the conditions may address types of behaviour that may increase the risk of the offender committing a serious sex offence or serious violence offence, or the risk of the offender engaging in behaviour or conduct that threatens the safety of any person (including the offender).

The SO Act introduces a new schedule 3, listing existing and additional offences not to be committed as core conditions of a supervision order (these are in addition to serious sex offences and serious violent offences). The offences added to this list relate to home invasion, aggravated home invasion, carjacking, aggravated carjacking, culpable driving causing death, and summary offences including distributing an intimate image and threating to distribute an intimate image.

Discretionary conditions

The SO Act maintains the existing list of discretionary conditions, which includes, for example, a requirement not to consume alcohol, a requirement to participate in rehabilitation activities, and types of employment in which the offender must not engage.

New intensive treatment and supervision condition

The SO Act introduces a new intensive treatment and supervision condition that a court may impose to require offenders to live at a residential treatment facility. In imposing this condition, a treatment and supervision plan must be prepared for the offender and considered by the court. If an intensive treatment and supervision condition is imposed, further conditions must also be imposed on the supervision order. This includes requisite attendance at treatment or rehabilitation activities set out in the treatment and supervision plan, restrictions on the ability of an offender to leave the facility, and mandatory use of electronic monitoring devices.

Intensive treatment and supervision conditions can operate for a period of up to two years, with potential for renewal for a further 12-months, and then further renewal in exceptional circumstances.

The SO Act maintains the existing provision of judicial discretion in establishing further conditions that the court considers appropriate.

The SO Act also provides that in considering the conditions to impose on a supervision order, the court must consider other orders that the offender is subject to, such as family violence orders, personal safety intervention orders and other intervention orders (where it is necessary to reduce the risk of the offender reoffending or address reasonable concerns of the victim’s welfare and safety).

Contravention of orders

The consequences of a breach of a supervision order by an offender remain largely unchanged by the SO Act. This includes a maximum five-year term of imprisonment for failure to comply with a condition of a supervision order, and a mandatory minimum sentence of 12 months’ imprisonment for the breach of a restrictive condition. The existing provisions of the SSODS Act in relation to the prosecution of such offences remain mostly the same.

New emergency detention orders

The SO Act introduces new emergency detention orders applicable to people subject to a supervision order (or interim supervision order). The SO Act allows the DJR Secretary to apply to the Supreme Court for an emergency detention order, which allows the offender to be detained in prison for up to seven days, in the case of altered circumstances where the offender poses an imminent risk of committing a serious sex or violence offence. In this application, the DJR Secretary must demonstrate that the circumstances have been substantially altered to provide that the risk of the person reoffending is now imminent, and that there are no practicable alternative means to mitigate the risk.

The SO Act enables the Supreme Court to decide that an emergency detention order application can be heard and determined in the offender’s absence.

The court is required to consider, as part of its determination, any assessment or progress reports or other evidence or matters; and is also able (but not required) to consider the likely impact of an emergency detention order on the offender.

The SO Act allows for the right to appeal a decision to either make or not make an emergency detention order, as well as the duration of the order, by either the offender or the DJR Secretary.

Review of orders

The SO Act requires that both supervision and detention orders be reviewed regularly. The Director of Public Prosecutions is responsible for ensuring the application for a review of a detention order at least every 12 months and the DJR Secretary is responsible for ensuring the application for a review of a supervision order at least every three years.

Under the existing scheme, an application can only be made after that person has left custody. The SO Act makes one change to the existing scheme in allowing applications for review of a supervision order to be made even if the person is remanded in custody.

Powers to manage persons

The SO Act maintains the existing provisions under the SSODS Act that allow a court to authorise the Post Sentence Authority to give directions to persons subject to supervision orders in relation to the conditions imposed on them. It is noted that in certain emergency situations, the Post Sentence Authority is able to direct management of a person for up to 72 hours in a way that is inconsistent with the conditions of their order.

Post-sentence Authority

The Post-sentence Authority provides independent oversight of the continued supervision and detention scheme (seeAdult Parole Board’s Post-sentence Authority”).