~-.

Report ·

·of the

· Parole· Board

1 January 2001 - 31 December 2001

;

~: > } i . , ,_ ·~

NSW ENQ: (02) 9289M1125 FAX: (02) 9212~6714

REF: 9110666

The Hon Richard Amery MP Minister for M.Jrici.Jiture Minister for Corrective Services SYDNEY

Dear Minister ·

RODEN CUTI..ER HOUSE

24 CAMPBELL ST SYDNEY 2000

In accordance with Section 192 of the Crimes (Administration of Sentences) Act 1999, I have pleasure in submitting to you, ·for the information of Parliament, the report of the Parole Board for the period 1 January 2001 to 31 December 2001.

Yours faithfully

POSTAL ADDRESS: GPOBox31 SYDNEY NSW 2001

e ·

FUNCTIONS AND RESPONSIBILITIES OF THE PAROLE BOARD

The Parole Board's role is to consider:-

1. Those offenders' cases for whom the1courts have set a sentence of more than three years, with a non parole period; to determine their suitability for release from custody, at the expiration of the non parole period and return to the community, under supervision forth~ term of a parole order. Offenders include those whose life sentences have been redetermined by the Supreme Court, pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999.

2. Parolet~l(;ases, where the person has not complied with the terms and conditions of the parole order, or where matters have arisen requiring the attention of the Board; thereafter to determine if the parole order issued should be revoked and a · warrant issued for the offender's apprehension and return to lawful custody.

3. Revocation of a parole orde;· prior to the offender's release, if there is sufficient reason to believe that the offender, if released from custody, would not be able to adapt to nonnallawful community life. ·

4. Home detention detainees' cases, where the detainee has not complied with the terms and conditions of the home detention order, or where matters have arisen requiring the attention of the Board; thereafter to determine if the horne detention order issued · should be revoked and a warrant issued for the offender's apprehension and return to lawful custody. After the former home detain~e has served three months in full time custody, the Board may issue a new home · detention order, if there is a favourable assessment

5. · Periodic detention matters, where the Commissioner of Corrective Services applies to the Board for the revocation of a periodic detention order, on the grounds that the detainee has at least three unauthorised absences or the detainee is not serving the sentence in accordance with the order. The Board may revoke an order without an application from the Commissioner, if it appears to the Board that there is good reason for doing so.

The Board may not make a parole order for an offender unless it has:-

1. determined that the release of the offender is appropriate, having regard to the principle that the public interest is of primary importance;

2. considered the sentencing judge's comments, criminal history of the offender, correctional centre, medical and other reports from various authorities and any special circumstances;

3. had regard to the likely effect of release on any victim;

4. determined that it has sufficient reason to believe that the offender, if released from custody, would be able to. adapt to normal lawful community life,

The Act provides for an offender to be given the right to appear in person and/or be represented before the Board, in cases where the Board has indicated an intention to refuse parole, has revoked a parole order prior to release, has revoked a parole order after

3

offender has the opportunity of submitting a case for either release to parole or resCission of a revocation. In the case of revoked periodic detention orders, the detainee may submit a case for a home. detention order to be set for the remainder of the sentence.

These proceedings are conducted in public and interested parties are able to attend and give evidence. The hearings are not bound by .the rules or practice of evidence and are not conducted in an adversarial manner.

When the Board determines to refuse parole, after hearing evidence at a review hearing, its decision and the offender's case, are reviewed at least every three years.

Where the Board has cause to believe that a parolee has breached a term or condition of an order, the ~card may inquire into the alleged breach. Should it determine that a breach has been committed, the Board may revoke the order or direct that no action be taken. Parolees have the right to be present and to have legal representation at inquiries.

COMPOSITION OF THE PAROLE BOARD

The Board is constituted under the provisions of_Section 183 of the Crimes (Administration of Sentences) Act 1999. There is provision for between 10 and 22 members, 19 of whom are appointed by the Governor of New South Wales. Of the appointed members, three are to be judicial members and 16 are to reflect, as closely as possible, the composition of the community at large.

Judicial members may be judges or retired judges of a New South Wales or Federal Court, magistrates or retired magistrates, or persons qualified to be appointed as a judge of a New South Wales Court. ·

Sixteen community members may be appointed, though only four may sit at any one time. ·

The other three members do not require appointment to the Board by the Governor. These are a member of the New South Wales Police, nominated by the Commissioner for Police, an officer of the Probation and Parole Service nominated by the Commissioner of Corrective Services and the Secretary of the Parole Board.

To assist the Board in fulfilling its functions, there is a Secretariat. The Secretariat consists · of the Secretary and 16 administrative staff. All officers are officers of the Department of Corrective Services.

The Board and Secretariat are on Level 15, Roden Cutler House, 24 Campbell Street, Sydney (Phone 9289-1333. Fax 9212-6714).

Judicial members:

The Hon WK Fisher AO QC

His Hon CJ Bannon QC :1 ...

MrC Gilmore

Community members:

Ms M Bolt

Ms C Dovey

Dr D Grimes

Mr J Haigh

Mr H Heilpern

Ms S Malamoo

Mr G McNeil

MrLWalker

Official members:

4

MEMBERS

Parole Board Membership durins;~ 2001

Chairperson-Appointed 28 July 1999.

Deputy Chairperson - Appointed 30 May 1997. Alternate Chairperson from 20 March 1998.

Deputy Chairperson -Appointed 24 March -2000.

Appointed 14 February 1996, re-appointed 14 February 1999.

Appointed 1 August 1997, re-appointed 1 August 200Q.

Appointed 11 April 1997, re-appointed 11 April 2000.

Appointed 8 August 1997, re-appointed 8 August 1999.

Appointed 17 November 1995, re-appointed 17 November 1998, appointment ended 16 November 2001.

Appointed 1 July 1994, re-appo·inted 1 July 1997, re-appointed 1 July 2000.

Appointed 11 April 1997, re-appointed 11 April 2000.

Appointed 1 July 2000. MrWalkerwas on leave from the Board throughout the year

NSW Probation and Parole Service:

MrS West Commenced 9 October 1997. Appointment ended with Mr West's retirement from the Public Service in August 2001 .

5

Mr R Cosman ·From Mr West's retirement.

NSW Police Service:

Nominee of Commissioner of Police:

Detective Inspector Jennifer Thommeny Commenced 8 September 1999.

Sergeant Adam Byrnes relieved Det lnsp Thommeny from time to time.

Secretary of Parole Board -~- -···

Mr Graham Egan .

ACKNOWLEDGMENTS

The Board wishes to place on record its appreciation of the efforts and services provided by:-:

Department of Corrective Services staff, in particular Probation and Parole Service Officers, Psychologists, Alcohol and Other Drug Workers, Corrections Health Service staff, ·correctional Centre Officers, Sentence Administration Unit staff, Crown Solicitor's Office, Police Service staff and the Parole Board Secretariat.

SECRETARIAT

Legislation provides for a Secretary, who is ably supported by a secretariat of 17 officers; All Secretariat staff members are officers of the Department of Corrective Services and are situated in the Department's main office at 24 Campbell Street, Sydney.

NEW REVIEW HEARING ACCOMMODATION

On 19 Februar-Y the Board moved into its new review hearing accommodation in court 17 in the old District Court complex in Hospital Road. There had been renovation of a large courtroom, which allows seven members of the Board to sit together as a panel. There is also improved space for legal representatives, parole officers, witnesses, inmates, staff and public.

Behind the hearing room there is a large, comfortable room for the members to deliberate. Mr Robert Cosman, who was at the time the Board's Probation and Parole Service liaison officer did much to make the move possible and successful. Mr Cosman was awarded a

· Commissioner's Commendation for his work.

The only problem with the new accommodation is that the Board is on notice to vacate in three months, if necessary. All who work in court 17 hope that no such notice is ever received.

LEGISLATIVE REQUIREMENTS

The Board was established, in its present form, as the Offenders Review Board, pursuant to the provisions of the Sentencing Act (1989), which was proclaimed on 25 September 1989. A later amendment to the Act, changed the name of the Board to the Parole Board. There has been a Parole Board in New South Wales since the middle of the 201

h century.

T ...

I

6

On -3 April 2000, the Crimes (Administration of Sentences) Act 1999, replaced all the previous legislation, which governed the operation of the Board.

NEW LEGISLATION

In 2001 there were two new la~s affecting the Board.

In the first, the Board was authorised to take evidence and conduct its public review hearings, using remote audio/visual links. The aim of this was to reduce the cost of moving inmates and witnesses, especially from the country, to Sydney for Board hearings. The legislation presumes that the Board will use the audio/visual link, unless it orders otherwise.

By the end o~the· year, the equipment had not yet. been installed in the Board's premises in court 17, Hospital Rd.

The second change to legislation affecting the Board enabled it to delay the release, on parole, of a serious violent offender, for up to seven days. The Board was· empowered to do this, if the release of the person would occur on the anniversary of the crime .

. APPEALS

The Act provides for appeals against determinations of the Board in respect to the refusal of parole and the revocation of a parole order. Appeals are to the Court of Criminal Appeal and are limited to the seeking of a declaration that material relied upon by the Board, in deciding to refuse parole or revoke a parole order, was false, misleading or irrelevant.

There were no successful appeals to the Court of Criminal Appeal in 2001.

There were two actions in the Supreme Court, however, against determinations of the. Board.

1. Sides v Parole Board

Sides argued that, in· considering his release to parole, the Board had failed to make a decision, l,lnder Section 141 of th~ Act, which requires the Board to make a decision on

·- whether or not to order release on parole, following a review.

Clause 17 (1) of Schedule 1 of the Crimes (Administration of Sentenc(3s) Act 1999 states:

A decision supported by a majority of the votes cast at a meeting of the Parole Board at which a quorum is present, including the vote cast by· a judicial member entitled to vote at the meeting, is the decision of the Parole Board.

In the Sides matter, the judicial officer did not support the majority decision. The Board announced that the result was a negative decision.

The Court ruled that the Board had not made any decision under S 141 of the Act, as required by that section and that the Board's duty to make such a decision remained · unperformed.

As a result of the Court's declaration, the Board reconsidered the matter, with a different panel of members. The Board was able to make a decision.

7

2. . Laurente v Parole Board

The plaintiff sought an order in the nature of mandamus directing the Board to exercise is discretion under s 165 of the Crimes (Administration of Sentences) Act 1999 to direct that the remainder of the plaintiff's sentence be served by home detention.

I

· Following revoc.ation of the plaintiff's periodic detention order, at review, the Board refused an application for a home detention order on the grounds that the plaintiff had been sentenced to a term greater than eighteen months, so the Board had no power to order home detention for the remainder of the revoked periodic detention term.

The Court found that the Board may only consider whether an order for home detention should be mad~- in-· circumstances where, at the date upon which the order for periodic detention is revoked, the offender has eighteen months or less to serve. Eligibility for home detention is, therefore, to be determined upon the position of the offender at the time he or she breaches the conditions of periodic detention.

3. Legal Advice

The Board sought advice from the Crown Solicitor on the construction of s 165 of the Crimes (Administration of Sentences) Act 1999. This section allows the Board to order that a person whose periodic detention order has been revoked, should serve the remainder of the sentence by way of home detention. A question arose as to the interpretation of the remainder of the sentence. Home detention cannot be ordered on sentences exceed.ing 18 months. Periodic detention can be ordered for sentences of up to three years. It is possible, however, for a revoked periodic detainee to have less than 18 months of a non parole period remaining to serve on a sentence that exceeded 18 months, when imposed.

Advice was sought on whether the term remainder of the sentence should be construed as a reference to the total sentence or to the non parole period component of the sentence.

The Crown Solicitor first advised that it should be construed as a reference to the non parole period. The Board provided the Crown Solicitor with some further issues to consider and the Solicitor reversed his opinion, coming to the view that it should be construed as a reference

t

to the total sentence. The Board requested that the Solicitor reconsider the matter and submitted further information. This time the Crown Advocate considered the matter. t The Crown Advocate came to the view that the it should be construed as a reference to the non parole period. No further advice was sought.

MEETINGS OF THE BOARD

The Board met every working day of the week. The only times the Board did not meet were during the usual two week recess for the Christmas and New Year holidays.

The Board held 243 meetings. These consisted of 149 meetings in the boardroom and 94 review hearings.

A total of 11 ,804 cases were before the Board at these meetings, which was ari increase of 4.6% over the previous year. (Any one offender or parolee could be included several times in this total.) There has been a notable increase in recent years, in the number of cases considered by the Board. The prime cause of this has been the steady rise in the number of persons imprisoned.

8

STATISTICAL INFORMATION

1 JANUARY 2001 TO 31 DECEMBER 2001

Release to Parole:

In 1485 cases the Board made a determination as to whether the offender should be released to parole.

Results of the determinations are as follows: -

Parole Ordered: ~-- ....

Parole was ordered in 1162 cases. Sixteen of these were serious offenders and five were pursuant to Section 160 of the crlmes (Administration·of Sentences) Act 2000, which permits the Board to order parole, before the expiry·ofthe non parole period, if the offender is dying, or if it is necessary to release to parole, owing to exceptional extenuating circumstances. . '· ·

When the Board does order that an inmate be released on·parole, it does not always do so immediately the inmate becomes eligible for release on parole. Parole may be ordered after one or more earlier refusals.

Parole Refused:

Parole was refused in 323 cases. Eighteen of these were serious offenders.

PAROLE CONSIDERATION CASES

IIJ Parole ordered 78.2%

• Parole refused 21 :8%

9

Parole Orders Revoked

lhe Board revoked 1,165 parole orders. Of these, 769 were the result of a breach of ­conditions, other than the commission of another crime; three of these were serious offenders. Three hundred and ninety-six revocations were the result of another conviction; one of these was serious offender. Sixteen parole orders were revoked, before the offender was released on parole.

PAROLE REVOKED CASES

It is important to bear in mind that the Board revokes parole orders made by courts, in respect of sentences of three years or less, as well as those orders it makes itself. ·Courts make many more orders than the Board does.

Other breaches included:

* * * * *

failure to maintain contact with supervising Probation and Parole Officer; changing address without permission; leaving the state without permission; failure to attend drug and a.lcohol rehabilitation centre; failure to abstain from alcohol.

Home Detention Orders -

The Board revoked 76 home detention orders.

Periodic Detention

The Board revoked 855 periodic detention orders. After reviewing its revocations, the Board rescinded7 3 of its cancellations. Revocations of periodic detention orders were confirmed in 676 cases. In 156 cases the Board ordered home detention for the remainder of the revoked periodic detention sentence.

t

10

TERMS AND CONDITIONS

The standard terms and conditions of parole are:-

1. The offender is to be of good behaviour and must not, during the term of the order, commit any offence.

2. The order may be revoked if the offender contravenes any of the terms · and conditions of the order.

3. The order may be revoked if the Board determines that it has sufficient reason to believe that the offender, having been released from custody, has not adapted to nornJal lawful community life.

4. The offender must, *until the order ceases to have effect or for a period of 3 years from the date of release (whichever is the lesser); *until supervision ceases in accordance with condition 9; submit to the super:vision and guidance of the Probation· · and Parole Service Officer assigned for the supervision of the offender for the time being and obey all reasonable directions of that officer and, in particular, the offender-

a) is to report to the Probation and Parole Service Officer or another person nominated by that officer in the manner and at the times directed and be available for interview at such times and places as that Officer or nominee may from time to time direct; and

b) · is to reside at an address agreed upon by the Probation and Parole Service Officer and receive visits at that address by the Probation and Parole Service Officer on such occasions as the Probation and Parole Service Officer considers necessary; and

c) is not to travel outside the boundaries of the State of New South Wales without the express approval of the Officer-in-Charge of the District Office of the NSW Probation and Parole Service to which the Probation and Parole Officer is attached; and

d) is not to leave Australia without the permission of the Parole Board.

5. The offender is to enter into employment arranged or agreed on by the Probation and Parole Service Officer or make himself or herself available for employment as instructed by that Officer; and

6. The offender is to notify the Probation and Parole Service Officer of any intention to change his or her employment, if practicable before such change occurs, or otherwise at his or her next interview by the Probation and Parole Service Officer.

7. The offender is not to associate with any person or persons specified by the Probation and Parole Service Officer.

8. The offender is not to frequent or visit any place or district designC:lted by the Probation and Parole Service Officer.

9. The terms and condition's of this Order relating to supervision by the Probation and Parole Service Officer shall cease to have effect if the probation officer has notified

10.

11.

12.

11

the offender, in writing, with the concurrence of the Officer-in-Charge of the District Office of the NSW Probation Service to which the probation and Parole Service Officer is attached, that the offender is not required to be subject to supervision.

The terms and conditions of this order relating to supervision by the Probation and Parole Service Officer shall cease to have effect after ... ..... if the Probation and Parole Service Officer has notified the offender, in writing with the concurrence of the Officer-in-Charge of the District Office of the NSW Probation Service to which the probation officer is attached, that the offender is not required to be subject to supervision.

The offender shall totally abstain from intoxicating liquor. . .# ~ -·

The offender shall, if so directed by his/her Probation and Parole Service Officer, seek assistance in controlling his/~er abuse of alcoholic liquor.

The offender will , in writing, authorise and direct all his/her medical, and other professional and/or technical advisers or ·consultants to make available to the New South Wales Probation and Parole Service a relevant report on his/her medical, and/or other conditions at all reasonable times.

13. The offender shall, following his/her release, undertake and maintain a program directed towards controlling his/her abuse of alcoholic liquor which has been or shall be arranged by his/her Probation and Parole Service Officer.

14. The offender shall, if so directed by his/her Probation and Parole Service Officer, seek assistance in controlling his/her abuse of drugs. ·

The offender will , in writing, authorise and direct all his/her medical, and other professional and/or technical advisers or consultants to make available to the New South Wales Probation and Parole Service a relevant report on his/her medical, and/or other conditions at all reasonable times.

15: The offender shall, following his/her release, undertake and maintain a .program directed towards controlling his/her abuse of drugs which has been or shall be arranged by his/her Probation and Parole Service Officer.

16. The offender will undertake urinalysis, where facilities are available, at the discretion of the Probation and Parole Service Officer. If it is established by such urinalysis that the parolee has illegally used a drug it shall 'be considered a breach of the .Parole Order.

17. The offender shall undertake urinalysis, where facilities are available, for ...... and thereafter at the discretion of the Probation and Parole Service Officer. If it is established by such urinalysis that the parolee has illegally used a drug it shall be considered a breach of the Parole Order.

18. The offender shall entirely refrain from gambling.

19. The offender shall seek assistance in such manner as his/her probation officer may direct in controlling his/her gambling.

20. The offender shall seek assistance in controlling his/her gambling.

21 . The offender shall enter a rehabilitation/residential centre as directed by his/her

l I I " ~ ~·

I ~

l I I

12

Probation and Parole Service Officer and shall not discharge himself/herself without the consent of the Probation and Parole Service Officer.

22. The offender shall enter ......... rehabilitation centre and shall satisfactorily complete the program and shall not discharge himself/herself without the prior permission of the supervising officer. r .

23. The offender shall attend at such place as the probation officer may direct ·for the purpose·of undergoing psychological assessment and/or counselling, and/or other medical assessment and/or treatment.

24.

The offender will, in writing, authorise and direct all his/her medical, psychological and ~ther professional and/or technical advisers or consultants to make available to the New South Wales Probation and Parole Service a relevant report on his/her medical, psychological and/or other conditions at all reasonable times.

The offender shall attend at such place as the Probation and Parole Service Officer may direct for the purpose of-undergoing psychiatric assessment and/or counselling, and/or other medical assessment and/or treatment.

. The offender will, in writing, authorise and direct all his/her medical, psychiatric and other professional and/or technical advisers or consultants to make available to the New South· Wales Probation and Parole Service a relevant report on his/her medical, psychiatric and/or other conditions at all reasonable times.

25. Parole supervision shall be in conjunction with the ...... Community Corrections (Correctional) Service/ Probation and Parole Service ·provided that should he/she return to New South Wales bef~re the date of expiration of the Parole Order, the offender shall report to the New South Wales Probation and Parole Service within seven (7) days of his/her arrival.

26. The offender may reside in ... . pending formal arrangements being finalised to transfer the Parole Order interstate in accordance with the provisions of the Parole Orders (Transfer) Act, 1983.

27. The offender shall not contact, communicate with, intimidate, watch or beset ......... .

28. The offender shall not contact nor communicate with ....... : .. without the express prior approval of the supervising Probation and Parole Officer.

29. Parole supervision shall be undertaken by the New South Wales Probation and Parole Service until such time as the parolee has been deported. During the·time that the offender is absent or is residing in another country, supervision by the Community Corrections (Correctional) Service/Probation and Parole Service of that country to be arranged where possible. Should the parolee return to Australia before the date of expiration of the Parole Order, the offender shall report to a Probation .and Parole Service Officer within seven (7) days of his/her arrival. ·

30. The offender is to report to the Officer-in-Charge, Witness Security Unit. If the offender is removed or for any reason ceases to be on the Witness Security Program of any Police Force or agency prior to the expiration of the Parole Order he/she shall report within seven (7) days to the nearest New South Wales Probation and Parole Service Office. The offender will then be subject to Standard Conditions 1-8 for the· . duration of the Parole Order.

13

31 . The offender shall not be in the company of any person under the age of 16 unless accompanied by a responsible adult.

32. The offender shall not be in the company of any person under the age of 18 unless accompanied by a responsible adult.

33. The offender shall not change residence without the approval of the supervising officer.

WK FISHER AO"aE· CHAIRPERSON