Imprisonment, supervision and prisoner rights

At the criminal proceeding, the judicial officer (e.g. 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 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.

A prisoner who has served the minimum term of their sentence (less any remissions where applicable) becomes eligible for release on parole (s 74 Corrections Act). Prisoners 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 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 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.

In addition, 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 prisoner 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 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’.

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).

The Justice Legislation Amendment (Serious Offenders and Other Matters) Act 2019 (Vic) commenced on 20 November 2019. This Act expanded the senior membership of the Adult Parole Board beyond judges, to ensure the sustainability of the Board. Lawyers with 10 years’ experience are now eligible.

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.

Calling in fines

Prisoners can call in outstanding warrants while in custody. This is done by the prisoner (who may be assisted by a lawyer) 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.

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 in 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 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 100 of the Corrections Regulations give Corrections Victoria the authority to grant emergency management days (EMDs) in specified circumstances. EMDs reduce affected prisoners’ non-parole periods or, if this has not been fixed, prisoners’ sentences.

‘Specified circumstances’ include:

• industrial disputes;
• emergencies;
• circumstances of an unforeseen and special nature.

Whether or not an incident or circumstance is regarded as an emergency or an unforeseen and special circumstance depends on the event’s context. This is a discretionary decision made by the Secretary of the Department of Justice and Community Safety (‘DJCS Secretary’).

In general, ‘specified circumstances’ do not include experiences that are common within the prison system (e.g. time spent in police cells, normal movement to court or police cells, good behaviour,  and general security lockdowns following a prison incident). However, periods of mandatory quarantine due to COVID-19 have been deemed to be an ‘emergency’.

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;
• fourteen days for unforeseen or special circumstances.

Some cohorts of prisoners (e.g. those charged or convicted of terrorism-related offences) are excluded from being automatically considered for having EMDs granted, but they are still permitted to apply.

In deciding whether or not to allocate EMDs to a prisoner,  the prisoner’s behaviour during the period of disruption or deprivation is considered.

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 DJCS 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 100 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 and 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 Corrections Regulations). The result was that when incidents occurred within the prison – such as lockdowns for security reasons – prisoners would not receive EMDs. 

As a result of changes to the Corrections Act – which came into force on 20 November 2019 – EMDs cannot be granted for any emergency that is caused or contributed to by prisoners (s 58E(3) Corrections Act).

Unforeseen and special circumstances

EMDs may be granted where circumstances have arisen of an unforeseen and special nature. This may include where a prisoner’s conduct has been exceptional or meritorious (e.g. saving a life or 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 DJCS Secretary may grant up to 14 EMDs in unforeseen and special circumstances (reg 100 Corrections Regulations).

Granting emergency management days

To apply for EMDs, prisoners must fill-in the EMD application form. The application must include the number of EMDs sought and reasons why it is believed that EMDs should be granted.

The application is given to the general manager of the particular prison, who must verify the details provided by the prisoner in their application and advise whether the application for EMDs is supported.

The application is then referred to the Commissioner of Corrections Victoria, who considers and determines the application.

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, the factors that may be considered include (see sub-s 19AP(4)):

• 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.