Crime: NSW Parole Reforms

Transcription

1 Crime: NSW Parole Reforms

2 Overview Where does this fit in your curriculum? Background: what is parole? How do criminal laws get made? Recent NSW amendments to parole laws

3 Where does this fit? Part 1: The legal system 4. Law Reform conditions that give rise to law reform agencies of reform 5. Law reform in action B. A contemporary law reform issue identify and investigate a contemporary law reform issue examine the conditions that give rise to the need for law reform, the agencies of reform and mechanisms of reform assess the effectiveness of law reform in achieving just outcomes 3

4 Where does this fit? CRIME: 4. Sentencing and punishment post-sentencing considerations, including security classification, protective custody, parole, preventative detention, continued detention, sexual offenders registration, deportation examine the implications of post-sentencing considerations in achieving justice evaluate the effectiveness of sentencing and punishment as a means of achieving justice 4

5 Background: What is parole? that part of an offender s imprisonment sentence served in the community after completing the minimum term of incarceration [jail time] and before the end of the head sentence [max period an offender can be kept in custody] Non parole period [ ] Head sentence possible release period [ ] 5

6 How do we get there? recap sentencing - Crimes (Sentencing Procedure) Act Court to set non- parole period (1) when sentencing an offender to imprisonment for an offence, the court is first required to set a non- parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the nonparole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). Eg. offender is sentenced for armed robbery to NPP of 9 years and the balance of the term is 3 years -> total head sentence is 12 years 6

7 Relevant legislation re parole? Crimes (Administration of Sentences) Act 1999 (NSW) (CAS) Crimes (Administration of Sentences) Regulation 2014 (NSW) (Reg) 7

8 Parole in NSW: Mixed parole system 2-tiered system* Statutory parole where HS 3 yrs** or less (previously courtbased parole) - > generally automatic Discretionary parole where HS > 3 yrs** -> at discretion of State Parole Authority (SPA) **sentence length = proxy for risk posed to the community *Note: fixed term sentences including < 6mths = no parole and release of serious offenders, while subject to SPA discretion, must take advice of Serious Offenders Review Council 8

9 Volume of parolees Dec 2017 quarter: 15,787 persons on parole in Australia highest on record (ABS, Corrective Services, Australia, 2018) In NSW 2017: 8,180 adult offenders released on parole (BOCSAR, NSW Custody Statistics Quarterly Update: March 2018) NSW SPA: 8,010 prisoners released on parole in ,188 released under a SPA order 6,822 under court-ordered parole (now statutory parole). In same period: 256 refused parole and 2,838 had their parole revoked (SPA, Annual Report 2016 (Dec 2017)) 9

10 What happens when a person is on parole? Subject to various conditions set out in the parole order & supervision by Community Corrections Officer (CCO) Standard conditions (CAS, s 128; Reg, cl 214): to be of good behaviour not commit offences on parole adapt to normal lawful community life (??) SPA may impose additional conditions or vary conditions (CAS, s 128(2) Parole order conditions give effect to a post-release plan (CAS, s 128(2A)) Subject to supervision (and direction) by CCO (CAS s 128C; Reg cl 214A) 10

11 What happens if a person contravenes parole order? In past, CCO reported breach to SPA -> parole revoked [person returned to jail] Now graduated options (since recent 2017 amendments below!) designed to be more flexible and tailored: record breach but do nothing to impose period of home detention to electronic monitoring to revoke parole 11

12 What is the aim of parole? Promote community safety by reducing re-offending Reintegrate the offender back into the community with the aim of reducing reoffending - > promotes community safety How? Prospect of parole = incentive to participate in in-custody and community based rehabilitation programs Allows for supervision/ management/ support of re-entry to community 12

13 Why then is parole viewed as so controversial? 13

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17 Why is parole viewed as controversial? Involves risk to community, because time on parole creates the opportunity to reoffend an opportunity that wouldn t exist had the offender been kept in custody until the end of the head sentence Also perceived as unwarranted leniency to offender and undermining truth in sentencing 17

18 Tension between community, victims and the offender Protecting the community through incapacitation (ie in jail) Vs Protecting the community by reducing the prospect of reoffending through a system of supervised release on parole 18

19 Public s views? Small number of high profile cases [cf. volume of parole decisions] involving serious crimes by offenders on parole lead to strong media headlines and calls for tightening up parole system - > tough on law and order responses by governments BUT Public attitudes toward parole are more nuanced: (1200) interviews suggest 68% agree that community has obligation to assist a person s re- entry to community after prison (only 38% disagreed) (Fitzgerald et al 2016) 19

20 How do criminal laws get made? Processes of Criminalisation* 1. The common law case method, involving judge- made law and the (indirect) influence of the jury, and which is influenced by prosecutorial decisions to initiate charges; 2. Law and order approaches which tend to be hurried, punitive and poorly evidenced in terms of justification and efficacy; 3. Internal government agency developed initiatives reflecting dominant imperatives and policy priorities; and 4. independent agency- based criminal law reform which tends to be principled, considered, evidence- based and the product of wide consultation. * Collaborative project with Profs McNamara, Hogg, Douglas, Loughnan & Brown 20

21 Processes of criminalisation in parole law reform: two different examples of processes 2. Law & order processes 4. independent agency-based criminal law reform 21

22 How do criminal laws get made? Parole often subject to law and order processes Usually a tragic trigger Knee-jerk and rushed Plays to the (wrong) gallery (media, sound bites ) Limited consultation with stakeholders, including legal profession Insufficient attention to operation and impact, including unintended effects

23 Law & order processes: examples re parole Rape and murder of Jill Meagher by parolee Adrian Bayley -> Corrections Amendment (Further Parole Reform) Act 2014 (Vic) Fatal stabbing of Elizabeth Kippin by Anthony O Keefe on parole - > Corrective Services (Parole Board) and Other Legislation Amendment Act 2017 (Qld) Yacqub Khayre (Vic) whilst on parole fatally shot Mr Hao & injured three police officers - > national agreement to establish presumption against parole for offenders who have demonstrated support for, or have links to, terrorist activity 23

24 Law and order processes: NSW and parole Terrorism Legislation Amendment (Police Powers & Parole) Act 2017 (NSW) (commenced 22/ 6/ 17) 24

25 NSW 15 Dec 2014: Man Monis & the Sydney Siege 25

26 State Coroner of NSW, Inquest into the deaths arising from the Lindt Café siege: Findings and recommendations (May 2017) 26

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29 Terrorism Legislation Amendment (Police Powers & Parole) Act 2017 (NSW) (comm 22/6/17) within amendments to expanded police powers on use of lethal force during terrorist incidents which were rec by Coroner in Lindt Siege ALSO Creates new Division 3A Parole orders for terrorism related offenders into Pt 6 CAS effectively introducing a presumption against parole for such offenders [no such rec by Coroner] 29

30 Terrorism Legislation Amendment (Police Powers & Parole) Act C Limitation on release on parole of terrorism related offenders (1) The Parole Authority must not make a parole order directing the release of an offender who is known to the Parole Authority to be a terrorism related offender unless: (a) the Parole Authority is satisfied that the offender will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism, and (b) the offender is otherwise eligible under this Act to be released on parole. 30

31 Not only way criminal laws can be made.. 4. Independent agency- based criminal law reform which tends to be principled, considered, evidence-based and the product of wide consultation Clear eyed: what is the gap that needs to be filled? Hastens slowly, gathers evidence and values independent expertise (eg NSWLRC) Good faith consultation with stakeholders Meaningful pre-enactment scrutiny and quality debate in Parliament Genuine post- enactment monitoring and review

32 NSWLRC inquiry into parole March 2013 broad ToR: to conduct an inquiry aimed at improving the system of parole in NSW.... Wide consultation including face- to- face consultation, scoping Paper, six question papers, large no. submissions June 2015: Final Report (almost 500 pages): the key objective of parole is to reduce reoffending by providing for an offender s supervised reintegration into the community (at 50) 96 recs within 17 broad areas covering everything from purpose of parole to membership of SPA and pre- parole programs / Documents/ Publications/ Reports/ Report-142.pdf 32

33 Parole Legislation Amendment Act 2017 Many NSWLRC recs taken up in the package of Justice Reforms passed by NSW Parliament on 18 October 2017 which included: Parole Legislation Amendment Act 2017 by 28 May 2018) (all parts commenced Majority of initiatives focus on community safety broadly conceived - > aim at reintegration and addressing re- offending But significant attempt to balance tensions between community, victims & offenders 33

34 2 nd Reading Speech to Parole Legislation Amendment Bill 2017 (NSW) The bill implements the Government's commitment to reforms to the criminal justice system that will improve community safety and reduce reoffending. The New South Wales parole system already works to reduce reoffending through Corrective Services' supervision of approximately 5,600 parolees at a time coupled with proven interventions targeting the causes of criminal behaviour. However, parole can be further strengthened to improve community safety and to maximise opportunities to return offenders to normal community life after release from custody. (David Elliott, Minister for Counter Terrorism, Corrections & Veterans Affairs, Hansard, LA, 11 Oct 2017) 34

35 What did the law do? Numerous changes but include 1. Change to paramount consideration in granting parole for sentences > 3 years -> interests of the safety of the community 2. Introduces reintegration home detention scheme 3. Introduces mandatory supervision as condition of parole 4. Change from court-based parole to statutory parole 5. Framework for sanctions for breach of parole orders 6. New power to revoke parole 7. Stronger voice for victims through Victims Register 8. No body; no parole 35

36 1. Community safety test: General duty of Parole Authority relating to release of offender (CAS s 135) (1) The Parole Authority must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community. (2) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must have regard to the following principal matters: (a) the risk to the safety of members of the community of releasing the offender on parole, (b) whether the release of the offender on parole is likely to address the risk of the offender re- offending, (c) the risk to community safety of releasing the offender at the end of the sentence without a period of supervised parole or at a later date with a shorter period of supervised parole. See closely resembles NSWLRC rec

37 Change Replaces old public interest test which vague didn t capture main issue re parole and squarely places community safety at the heart of the decision to grant parole BUT community safety broadly conceived recognising that reducing risks of reoffending through parole supervision contributes to community safety In determining, must still have regard to the factors in CAS s 135(3) such as (a) nature and circumstances of the offence; (d) likely effect on any V/ V s family; (f) community corrections report (f) etc 37

38 2. Pt 5A Reintegration home detention scheme Release of eligible & suitable offenders under home detention conditions up to 6mths before an offender s parole order takes effect Serious offenders, those serving DV offence, CSA, serious sex or violence offences or terrorism offences -> excluded Short-period of structured transition between custody and parole Enhances links with employment, training & community-based services & reestablish family/ social networks under more intense supervision than parole Reintegration home detention will have more structure and a higher level of supervision than parole. It is a way to prepare offenders for life in the community to help reduce their likelihood of reoffending by providing a transitional step down between custody and parole. (Elliott, 2RS) See NSWLRC rec

39 3. Mandatory supervision: CAS s 128C (1) It is a condition of a parole order that the offender is to be subject to supervision, as prescribed by the regulations. Note: obligations of parolee under supervision include conditions as to residence, programs, AOD testing, and CCO visits (see Reg, cl 214A) *NSWLRC rec supervision be mandatory condition of parole: rec

40 Why the need? re-offending and what can make a difference Studies found 40% prisoners released from prison return within 2 years BOCSAR found parolees intensively supervised less likely to re- offend than those released unsupervised Nature/ type of supervision important: intensive supervision tied to rehabilitative support lowered risk vs intensive checks on compliance with conditions of parole (Wan et al, Parole Supervision and Re-offending (BOCSAR 2014)) 40

41 6. New powers for SPA to revoke parole in absence of breach s 170B New powers for SPA to revoke a parole order or reintegration home detention order in additional circumstances including: the offender poses a serious and immediate risk to the safety of the community and that the risk cannot be sufficiently mitigated by directions from a community corrections officer or by changing the conditions of parole (s 170B(1)(a)) *See NSWLRC Rec

42 7. Expanded role for victims: Victims Register CAS s 256 SPA give notice to registered victims decisions on reintegration home detention & parole (so can make subs) All registeredvictims may make submissions to SPA SPA to give notice to registered victims of outcome of parole decisions (release & conditions; revocation) * See NSWLRC Rec

43 But law & order still creeps in 8. No body, no parole First law enacted SA in 2015; Vic and NT in 2016 Qld Aug 2017: Corrective Services (No Body, No Parole) Amendment Act March 2018 (passed parliament): Sentence Administration Amendment (No Body No Parole) Act 2017 (WA) 43

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46 Parole Legislation Amendment Act 2017 (NSW): No body; no parole! 135 General Duty of Parole Authority relating to release of offender (1) The Parole Authority must not make a parole order directing the release of an offender unless it is satisfied that it is in the interests of the safety of the community. (3) In considering whether it is in the interests of the safety of the community to release an offender, the Parole Authority must also have regard to the following matters: (e) if applicable, whether the offender has failed to disclose the location of the remains of a victim, 46

47 Closer Title