The Law Handbook 2024

Chapter 3.8: Imprisonment and the rights of people in prison 225 prison, and to the safe custody and welfare of the person in prison. Can people in prisons apply for a change in security rating? At any time during their period of imprisonment, a person may apply in writing for a change to their security rating or classification. These applications are sent to the Case Management Review Committee ( CMRC ). The CMRC submits the application, together with its comments and recommendations, to the Sentence Management Panel for a decision. The CMRC is required to consider relevant matters, and to allow people in prisons to make submissions. Therefore, the CMRC considers written submissions from friends, relatives, and a solicitor. Failure by the Sentence Management Panel and/ or the CMRC to consider relevant matters and to allow people in prisons to make submissions to it before its decision may be subject to judicial review. Usually, significant weight is given to the decisions of correctional administrators about matters such as classification. This is consistent with the view expressed by the Victorian Supreme Court that the process of classification is a ‘holistic process’ and not simply a ‘physical and geographical matter’ (see Knight v Spadano (2003) 145 A Crim R 1 at 13 per Justice Cummins). Parole Generally speaking, a person in prison who has served the minimum term of their sentence becomes eligible for release on parole (s 74 Corrections Act). People need to apply for parole. Their situation is reviewed before they have served the minimum term of their sentence. Adult Parole Board The Corrections Act established the Victorian Adult Parole Board ( APB ) and its composition, functions, powers and its decision-making principles. The APB has additional functions that are outlined in the Children, Youth and Families Act 2005 (Vic) and in the Sentencing Act. The APB does not have a case management function. This means that the APB is not responsible for preparing people in prison 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 in accordance with its statutory authority. 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). Currently, the Corrections Regulations (reg 112) set out the mandatory terms and conditions of parole orders and regulation 114 sets out other terms and conditions. Following some high-profile cases of offenders committing offences while on parole, the decision- making criteria for granting parole have 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. The APB has a Serious Violent Offender or Sex Offender Division ( SVOSO Division ). The SVOSO Division determines the eligibility of sex offenders and serious violent offenders for parole. Note that not all sex and violent offences are included. The Corrections Act (s 3) and the Serious Offenders Act 2018 (Vic) (sch 1) provide definitions of sex offender and serious violent offender for parole purposes. The SVOSO Division may only grant parole to a person convicted of a sex offence or serious violent offence if another division of the APB has recommended the person be granted parole. The SVOSO Division may refuse to grant parole even if this recommendation has been made. This provides a further ‘check and balance’ on parole decision- making to ensure that high-risk offenders are not released prematurely (which is consistent with the priority given to public safety). In exercising its functions, the APB is not bound by the rules of ‘natural justice’. Legal representatives do not have standing to appear on behalf of people in prison before the APB. A person dissatisfied by a decision of the APB may challenge the decision via judicial review in limited circumstances (see Fletcher v Secretary to the