Normally a duty solicitor would not deal with matters so serious that imprisonment and subsequent issues relating to parole would arise, however, this information is included for the sake of completeness.
The non-parole period is the minimum period which the prisoner must serve in prison or on home detention (for these purposes home detention is regarded as imprisonment; albeit at home). Once the non-parole period has expired, the prisoner may be released on parole, subject to their agreeing to be bound by conditions set by the Parole Board [see Correctional Services Act 1982 (SA) s 68(4)]. However, if in the opinion of the Chief Executive ('CE'), a prisoner is unreasonably refusing to accept the conditions to which the prisoner’s parole will be subject, or is unable to accept them due to a physical or cognitive impairment, the CE may accept the conditions on behalf of the prisoner and the prisoner will be taken to have accepted the conditions from the date of acceptance by the CE [s 68(4a)].
When the Court sentences a defendant to imprisonment for twelve months or more, known as the head sentence or the period on the top of a sentence it must consider fixing a non-parole period [see Sentencing Act 2017 (SA) ss 47(1)(a) and 47(5)(a)(i)]. The Court must specify the date the non-parole period is to commence (or be taken to have commenced) [see s 44(4)]. Where a court determines a sentence is to be backdated to the date the defendant was taken into custody, the non-parole period will be taken to have commenced on the same day [see s 44(5)]. The Court may decline to fix a non-parole period where it considers it would be inappropriate to do so due to the gravity of the offence, the criminal record of the defendant, behaviour during previous release on parole or conditional release, or for any other circumstance [see s 47(5)(e)].
The court may also decline to fix a non-parole period where the person is liable to serve a sentence in the community while subject to an intensive correction order [see s 47(5)(a)(ii)].
From 29 March 2021
A court may fix a non-parole period that is shorter than the prescribed period in exceptional circumstances. This may include an offence committed in circumstances of family violence, being circumstances in which the offender, or a member of the offender’s family, was a victim of family violence committed by the victim of the offence. In such cases, the court must have regard to any evidence of family violence admitted in the course of the trial for the relevant offence or otherwise before the court [s 48(3)].
Where a sentence of imprisonment is imposed for an offence which occurred during the defendant’s release on parole, or while serving a period of imprisonment in accordance with an order of the Parole Board (for breach of parole conditions), the sentence imposed for the offence will be cumulative upon the sentence for which the defendant was on parole [see Sentencing Act 2017 (SA) s 45].Where a defendant is already subject to an existing non-parole period, the Court may review and extend the existing non-parole period [see s 47(1)(b)]. Where a person is currently serving a period of imprisonment, the Court must take into account time already served, in fixing or extending a non-parole period [see s 47(9)(a), s 47(9)(b) for applications by DPP, Parole Board or Training Centre Review Board].
The Presiding Member of the Parole Board, or a prisoner who is serving a sentence of imprisonment which does not have a fixed non-parole period, may apply to the court to fix a non-parole period [see Sentencing Act 2017 (SA) s 47(3)]. Having a previous like application declined does not preclude the prisoner from making any further applications to fix a non-parole period [see s 47(4)].
If the prisoner has a head sentence of less than five years, they have an automatic right to have conditions set for their release on parole on the date of the expiry of the non-parole period. However, if, because of the commencement of a prisoner’s non-parole period has been backdated, the non-parole period expires prior to the date on which it is fixed, the Board must order that the prisoner be released from prison or home detention on parole not later than 30 days after the day on which the non-parole period is fixed [see Correctional Services Act 1982 (SA) s 66(1); s 66(1a); s 66(2) for exceptions].
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:
If the head sentence is five years or longer, the prisoner must apply to the Parole Board for release on parole [see s 67; s 67(3a) for safety of the community as a paramount consideration; s 67(4) for matters to be taken into consideration when determining the application]. The Parole Board may insist the prisoner complete further courses, training or counselling before consideration of their release.
Parole conditions may be similar to conditions imposed on good behaviour bonds but they may also range more widely. For example, it is common to require offenders who have committed sex offences on young persons not to associate with persons under a certain age [see Correctional Services Act 1982 (SA) s 68(1a)].
All prisoners are released on parole on condition that they do not commit any offence or possess any firearm, part of any firearm or ammunition or any offensive weapon, and they must be under the supervision of a community corrections officer and obey all reasonable directions of that officer until the expiration of the period of parole, including that they submit to gunshot residue testing as reasonably required [ss 68(1)(a) and 68(1)(aa)]. They may also be required to meet further conditions that they reside at a specific premises and undertake specific activities or programs for up to one year following release, and that they be electronically monitored [s 68(1)(b)]. The Board must consider imposing a condition that the prisoner perform community service upon their release on parole, if satisfied that the prisoner will not be undertaking remunerative or voluntary work or a course of education, training or instruction [s 68(1ab)].