When should a person expect to be released from prison?

Contributed by JohnRawnsley, Sam Dutaillis and Caitlin Burke and current to 1 May 2016

The Commissioner and the correctional facility must release a prisoner from the prison on their release date [section 61 of the Correctional Services Act 2014 NT (CSA)]. The release date marks the completion of a person's sentence, or 'full time'.

The Commissioner may choose to release a person up to 7 days before their release date if they think it is appropriate [s62 CSA]. In making a decision about 'early release', the Commissioner may consider [s62 CSA]:

• The health and wellbeing of the prisoner
• The protection of the prisoner
• The administration of justice
• The protection of the community
• Any other matters the Commissioner thinks is relevant

If a prisoner is given an Early Release from the Commissioner, their sentence is taken to end on the day they are released and they are no longer a prisoner. As a matter of general practice, early release is ordinarily done when there is some reason to release early such as the availability of an aeroplane flight back to a community on a certain day, or other similar reason.

There are also some circumstances where a prisoner may be let back into the community under certain conditions or rules to serve their sentence before their release date. For example [CSA s62]:

• Where a non-parole period has been fixed;
• If the prisoner has been issued an Administrative Home Detention Permit;
• Whether the Commissioner has afforded the prisoner 'early leave'; or,
• Whether the Court, in handing down their sentence, decided to release the prisoner on a good behaviour bond

Parole

The parole system is designed to help a prisoner transition back into the community through conditional release with supervision and support from NT Community Corrections.

The issue of parole arises when a court hands down a sentence of greater than 12 months or life, and where no part of that sentence has been suspended [s53 of the Sentencing Act 1995 NT (SA)]. In this case, the court must fix a period during which the prisoner is not eligible to be released on parole, a non-parole period [s53 SA]. The non-parole period is the period during which the prisoner cannot be released. However, the court does not have to determine a non-parole period where it considers the fixing of such a period inappropriate.

Some conditions apply to the fixing of a minimum non-parole period by the court:

• If the prisoner has been imprisoned for life for the crime of murder, the court may refuse to fix a non-parole period [s53A SA]
• The non-parole period must not be less than 50% of the sentence [s54 SA] (however, there are different rules for youth)
• The shortest possible non-parole period is 8 months [s54 SA]
• If the sentence includes a minimum of 12 months actual imprisonment, the non-parole period must not be less than 12 months [s54 SA]
• For the offence of sexual intercourse without consent there is a minimum non-parole period of 70% of the sentence [s55 SA]

For Federal prisoners, offenders must serve any non-parole period before becoming eligible for parole. A parole order for Federal prisoners is to be made by the Attorney-General [sections19AA, 19AL Crimes Act].

Parole Board

Members of the Parole Board are appointed by the Minister and the Board is made up of 18 members [section 3B of the Parole Act 2014 NT (PA)].

The members include:

• A Judge in the Supreme Court
• The Commissioner of Correctional Services
• 2 police officers
• 2 medical professionals
• 2 persons who represent the interests of victims of crime
• 10 persons who reflect the community at large, including women and Aboriginal and Torres Strait Islanders

Depending on the nature of the crime that a prisoner committed, a parole application will be considered by different members of the Parole Board [s3EB PA]. In most cases, the Parole Board will be made up of the Supreme Court Judge, the Commissioner of Correctional Services, a police officer, a person who represents the interests of the victim and 2 people who represent the community [s3EB PA].

However, for prisoners who have been sentenced for life for the crime of murder, the Board will be made up of the Supreme Court Judge, the Commissioner of Correctional Services, a police officer, a medical professional, a person who represents the interests of the victim and 5 people who represent the community [s3EB PA].

The role of the Parole Board is to consider whether prisoners, who have completed their minimum term of imprisonment, should be released on parole [s5 PA]. Another of the Board's roles is to outline the conditions (or rules) of a prisoner's parole where it has been granted. The main condition of parole generally requires the prisoner to be supervised and given any reasonable direction by an appointed person [s5(5) PA]. Any further conditions may include but are not limited to [s5 PA]:

• Requiring the prisoner to live in a certain place
• Require the prisoner to wear a monitoring device for all or some of their parole period, and to comply with the probation or parole officer's directions to use the device
• Giving a sample of the prisoners voice to use with the monitoring device

The 'reasonable direction' of a probation or parole officer includes, but is not limited to:

• Asking the prisoner to submit to a drug or alcohol test [s172(1) CSA]
• To place or attach an approved monitoring device to the prisoner
• Search the prisoner

Many Parole Orders have condition or rule that a parolee will not commit another offence when on parole. Many Parole Orders have a condition or rule that the parolee will not do anything to give rise to a Domestic Violence Order (DVO).

The Parole Order signed by the prisoner (who, when released to parole, becomes a parolee) lists all of the conditions or rules of parole. Parole Orders can be different and it is important a prisoner or parolee understands all the conditions or rules of their Parole Order.

When a Parole Order is signed, it is important the prisoner continue to demonstrate positive conduct and behaviour in prison and leading up to their release (and after their release). It is possible for a prisoner to sign a Parole Order and then have a write-up or misbehave and have their Parole Order revoked.

Applying for Parole

Around 8 months before a prisoner's non-parole period ends, they should expect a probation and parole officer from Community Corrections to being working with them to write a report for the Parole Board.

Around 2 months before a prisoner becomes eligible for parole, the Parole Board will consider their application.

When you apply for parole, it is important to think about whether you have a good plan for when you get out. Some questions to think about are:

• Do you have somewhere to live that the Parole Board will be ok with?
• Do you have family or other people in the community to support you?
• If the reason you are in prison is to do with alcohol and/or other drugs, do you want to stay in residential rehabilitation as a stepping stone to staying somewhere in the community? Have you done alcohol and/or other drug programs whilst in prison?
• Have you done all the recommended treatment programs that the prison has asked you to do?
• Do you have a job or think you could get a job? What sorts of jobs or training have you had before? The Parole Board like to know that a person on parole is staying busy with work or education or training or other programs.

The Parole Board can decide one of three things when considering an application (these are explained in more detail below):

• To agree to release to parole
• To defer the matter
• To decide not to release to parole

Agree to release to parole

If the Parole Board agrees for a prisoner to be released to parole, this means the prisoner will need to sign a Parole Order and can expect to be released on the date set in the order (so long as they continue to show positive conduct and behaviour and their Parole Order is not revoked).

When a prisoner is released to parole, they are taken to still be under sentence of imprisonment. They will not have served the term of their imprisonment that occurred during their parole until the parole period ends and has not been revoked or cancelled [s14 PA]. If the parole peiod ends without the parole order being revoked or cancelled, the person is taken to have served the term of their imprisonment whilst on parole [s14 PA].

To defer the matter

If the parole application is deferred, this means the Parole Board will talk about a prisoner's parole again at a date in the future. In many of these cases there is something that needs to be done or found out by the Parole Officer that needs to be brought back to the Parole Board. The prisoner should be provided some guidance as to what needs to be done during the period leading up to the next mention date.

Decide not to release on parole

If the Parole Board decides not to release on parole, no further work takes place with the parole file. The prisoner is sent a letter and in the letter there are reasons that are put as to why the Parole Board decided not to release. Sometimes the prisoner can work on these reasons. At a later date, the prisoner can ask the Parole Board to talk about their parole by putting in a 'reapplication' (this can be done with a letter or seeking assistance to write a letter). Before reapplying, it is useful to address the reasons outlined in the letter sent after the Parole Board decided not to release to parole.

If the Parole Board say yes to the reapplication, they will defer the matter to a future date and allocate a Parole and Probation Officer to talk to the prisoner about parole.

There is no internal appeal mechanism for a decision of the Parole Board. Like many decisions of an authority, decisions can be appealed to the Supreme Court. However, there can be costs involved and prisoners affected should be encouraged to seek legal advice.

Usually there is a reason why the Parole Board will say no to a parole application, such as a person being in a red or blue shirt (a medium or high security classification), or the need to do another program in prison, or the need to explore another accommodation option. It is useful to look at the reasons why the Parole Board said no and to deal with these reasons.

A prisoner is able to re-apply for parole at any time [Parole Board NT Website]

Access to information and exclusion of natural justice

The 'rules of natural justice (including any duty of procedural fairness) do not apply to or in relation to a decision or action' of the Parole Board [s3HA PA; Parole Board Policy and Procedures Manual p18-19].

However, the Parole Board should give reasons for their decision and ensure the prisoner knows the decision [Parole Board Policy and Procedures Manual p18].

In relation to access to information, prisoners can make an Access to Information request under the Information Act. Applications in a letter should be addressed to:

Revocation or Amendment of Parole

If a person is released on parole they are called a parolee. A parolee's parole conditions or rules in their Parole Order can be amended or changed. Parole can be revoked at any time 'before the end of their parole period' by the Chair of the Parole Board [s5(6) PA].

If a prisoner while out on parole fails to comply with a condition of their parole, or there are reasonable ground for suspecting the person has violated their parole, a police officer may arrest them without a warrant [s5 PA]. It does not matter if the parole period has expired or not.

The court's role is to consider whether the Parole Order is cancelled, and can do so if 'it is satisfied that the person has failed, without reasonable excuse, to comply with a condition of the parole order' [s6 PA].

If the court cancels or revokes parole and the parole period has already expired, the parole is taken to have been cancelled immediately before the expiration of the parole period [s6 PA].

Where the court cancels a parole order the parolee is sent back to prison as a prisoner [s7 PA].

Administrative Home Detention Permits

The Commissioner for Correctional Services has the power to issue an Administrative Home Detention Permit which allows the prisoner to live in a place outside the prison [s132 CSA].

Before a prisoner will be issued a permit, the Commissioner must make sure that the place a prisoner wants to live is suitable for them and does not put the community at risk or cause inconvenience [s133 CSA]. The prisoner must also agree to the rules of the permit [s133 CSA]. The only compulsory condition of the permit is that the person must not leave the approved place except for times that the Commissioner, probation or parole officer says is ok [s135 CSA].

To be able to receive this permit, a prisoner must be within the last 12 months of their sentence [s132(2) CSA]. However, a person will not be able to apply for this if [s132(3) CSA] if:

• Their sentence includes a non-parole period (in which case they should apply for parole)
• They have served less than 50% of their sentence
• They have been given a mandatory sentence
• The sentence is for an indefinite term as a result of a violent offence
• They are a youth prisoner
• They are a serious sex offender
• They are an immigration detainee

When a person is issued a permit, it is in force until the prisoners release date [s134 CSA].

Release

Preparation for Release

The Department of Correctional Services says that prisoner pre-release planning should start 3 months from their release date. However, if the sentence is less than 3 months in total, pre-release planning should happen alongside initial sentence planning [Correctional Services Sentence Management Manual pp36-38].

When planning a prisoner's release, sentence management staff should help in taking the right steps to achieving a smooth return to the community. Prisoners should expect and ask for help with [Correctional Services Sentence Management Manual p37]:

• Planning any health or medical needs for when they leave the prison
• Making sure their bank account, tax file number and anything else related to their income is ready to go when they are released
• Getting in touch with family, or any community support centres
• Organising a place to live when you leave, including any employment opportunities
• Making sure any government benefits are set up, such as Centrelink and Medicare
• Making sure the prisoner gets home safely, especially if home isn't close to the prison

Transport on Release

When a person is released when their sentence ends, the General Manager of the prison may arrange for the person to be transported to [s63 CSA]:

• The location where the person will be required to live as a condition of their parole order, or where they have chosen to live
• The place where the person lived before coming to the prison
• The place where the person was arrested before coming to the prison
• Any other place the General Manager considers appropriate

As of October 2015, the Department of Correctional Services revised their policy in relation to the repatriation of prisoners. As a result, if prisoners are not being collected by family, friends or by other arrangement, they will be taken to the nearest 'transport terminal' (bus stop) or legal representative's office. Also, persons will be expected to meet the costs of their repatriation [Department of Correctional Services, Office of the Commissioner 20/10/2015]. This means if they are from a regional or remote community they will be expected to pay for their own return and with money received as income from work or the Sentenced to a Job policy.

However, the Department of Correctional Services may still make repatriation arrangements for persons if it is a condition of their release, as would have been decided in Court [Department of Correctional Services, Office of the Commissioner 20/10/2015].

Assistance for prisoners

Complaints

A prisoner who has a grievance may be able to have it resolved without going to a court. Complaints can be made and handled as described in the following ways.

The superintendent

Prisoners can fill in what is known as a 'supers parade' to request a response from the Superintendent. Complaints or concerns can be raised through the supers parade.

The Superintendent and/or General Manager

A prisoner can make a complaint to the General Manager of the prison [s25 Correctional Services Regulations].

A prisoner can request to make a complaint to the General Manager or Superintendent of the prison by submitting a form commonly referred to as a 'supers parade'. This form can be requested from any prison officer. Following the submission of this form, the prisoner will have a meeting with the Superintendent. The prisoner may request that the complaint is made known to the General Manager. If the complaint remains unresolved following this meeting, the prisoner can submit a complaint to the Ombudsman (see below).

The Minister

Prisoners are able to submit a complaint directly to the Minister. It is possible the contents of the letter will be shown to the Commissioner or his or her office for advice and the Department's views.

Official visitors

An official visitor can assist the overall system by looking into matters inside a custodial correctional facility and reporting directly to the Minister. This can help as the Minister receives information from an independent source and from someone who can inquire into certain matters inside a facility, rather than just receiving that information from the Commissioner.

Part 2.3 of the CSA deals with official visitors. The Minister must appoint at least 3 official visitors for each Custodial Correctional Facility. These facilities include a correctional centre (such as a prison) or court custody centre or police custody centre [s 11, CSA].

The Commissioner must ensure that each custodial correctional facility is visited by an official visitor for the facility at least once every month [s 29 CSA]. The Official Visitor has the job of inquiring into the 'treatment, behaviour and conditions of the prisoners at the facility' [s 30 (2) CSA]. As soon as practicable after the visit the offiicial visitor reports to the Minister and in writing. If directed by the Minister to report to the Commissioner on a specific matter the official visitor must report (a) to the Commisioner on that matter; and (b) to the Minister on all other matters.

The official visitor 'must not interfere with, or give instructions about, the control or management of prisoners' [s 31 CSA]. It is not the official visitor's job to intervene and change a decision or something that is happening inside a custodial correctional facility. Rather, it is their job to look into it and give a report to the Minister.

Prisoners can be encouraged to talk to the official visitor to raise general issues of concern. For individual complaints these matters can be more appropriately dealt with under more formal arrangement such as a complaint or following up with support services or legal advice.

Ombudsman

A prisoner may ask the General Manager of the prison for help in preparing a written complaint to make to the Ombudsman [s26 Ombudsman Act]. The General Manager must ensure that the prisoner is given a proper place and a way to prepare their written complaint. This includes [s26 Ombudsman Act]:

• Any information relevant to making their complaint
• An envelope in which the complaint and any documents can be enclosed and sealed
• Making sure the sealed envelope is sent to the Ombudsman without unreasonable delay
• Any response from the Ombudsman is given to the prisoner without unreasonable delay

Prison authorities are not allowed to open letters sent between prisoners and the Ombudsman [ss151, 153, 154 CSA; s26 Ombudsman Act].

Legal Practitioner

A legal practitioner may visit the prisoner at any reasonable time by appointment with the General Manager [s96 CSA]. Generally, this is with 24 hours notice (a legal practitioner can negotiate outside of this timeframe). Legal professional privilege applies to legal practitioners meeting with their clients in prison. A meeting between a prisoner and their legal practitioner must not be audibly observed or recorded without the consent of the visitor [s102 CSA].

The General Manager must not monitor or record a phone call between a prisoner and their legal practitioner without the consent of the legal practitioner [s105].

A prisoner must not be stopped from sending or recieving any legal mail [s106].

However, if a correctional officer reasonably believes that mail is not in fact a legal item and is made out to be a legal item, they may confiscate the mail [s153 CSA]. A legal practitioner who has been nominated by the Minister [s156 CSA] can then inspect the mail to determine whether in fact it is a legal item [s154 CSA].

Prisoners Aid

There are a few prisoners aid services around the Northern Territory.

Darwin Prisoners Aid Association Inc. can assist with prisoners:

• Clothing
• Day leave
• Relocation
• Education Assistance
• Family reconnection
• Photographs
• Contacting Family

For more information about Darwin Prisoners Aid, send a letter to:

Women of Worth - YWCA - this program provides outreach support to women in the justice system and pays weekly visits to women in custody in Darwin. This program assists women with:

• Reconnection with children, family and community
• Housing
• Money matters
• Parenting
• Domestic violence support
• Education, training and employment pathways
• Cultural matters
• Mental Health
• Health and welfare
• Advocacy

To get in contact with Women of Worth, call 8932 6866 or send a letter to: