COVID19 – NSW Prisoners eligible for early parole release 

Jail barsOn 24 March 2020, the Crimes (Administration of Sentences) Act 1999 was amended to enable the Commissioner of Corrective Service the ability to grant parole to certain inmates in custody in NSW.  

The amendments are temporary measures, initially for six months but with a possibility to extend, and will only be used if necessary, in response to a COVID-19 health emergency in the prisons.

On 28 March 2020, the first case of COVID-19 in a NSW prison was confirmed, a health care worker at Long Bay Hospital, in Sydney’s southeastern suburbs. All necessary measures have been taken to protect staff and inmates.  Corrective Services have not disclosed any other confirmed cases among staff or inmates in prisons.

The Commissioner of Corrective Services

The Commissioner’s functions in respect of releasing inmates on parole under section 276 of the Act are limited to a period of 6 months from 25 March 2020 (or a total period of up to 12 months from that date if a longer period is prescribed by the regulations).

The power of the Commissioner to make a “Commissioner’s order” for conditional release of an inmate on parole is discretionary.  

The State Parole Authority

The State Parole Authority has announced that Corrective Services would be responsible for the supervision of parolees in the community. In the event of a parole breach they would be returned to prison.

The State Parole Authority will therefore not be involved in this process of conditional release for eligible offenders.

Section 276 Commissioner may grant parole during COVID-19 pandemic

To be eligible the inmate must belong to a class of persons prescribed by the regulations and the Commissioner must be satisfied that releasing the inmate on parole is reasonably necessary because of the:

  1.  risk to public health;
  2.  or to the good order and security of correctional premises arising from the COVID-19 pandemic.

Class of persons (Reg 330)

The following classes of inmates as eligible for release on parole by the Commissioner during the COVID-19 pandemic—

  1. an inmate whose health is at higher risk during the COVID-19 pandemic because of an existing medical condition or vulnerability,
  2. an inmate whose earliest possible release date is within 12 months.

Excluded persons

Inmates in the following classes cannot be released on parole by the Commissioner:

  • those who are national security interest inmates,
  • male inmates classified as Category AA, A1, A2 or E1
  • and female inmates classified as Category 5 or 4 or E1 are excluded.

Section 276(3) of the Act provides that certain inmates may not be released on parole by the Commissioner.

These include an inmate serving a sentence of imprisonment for any of the following offences–

  1. murder,
  2. a serious sex offence or an offence of a sexual nature (within the meaning of the Crimes (High Risk Offenders) Act 2006 ),
  3. a terrorism offence (within the meaning of Division 3A of Part 6 of this Act),
  4. an inmate serving a sentence of imprisonment for life,
  5. a serious offender,
  6. an inmate kept in custody in relation to an offence against a law of the Commonwealth,
  7. a Commonwealth post sentence terrorism inmate,
  8. a NSW post sentence inmate.

Factors to be considered before prisoner early parole release

Section 276(4) of the Act requires the Commissioner to consider various factors before releasing an inmate on parole.  The factors are as follows: 

  1. the risks to community safety of releasing the inmate,
  2. the impact of the release of the inmate on any victim whose name is recorded in the Victims Register in relation to the inmate,
  3. in the case of an inmate who has previously been convicted of a domestic violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 ), the protection of the victim of the domestic violence offence and any person with whom the inmate is likely to reside if released,
  4. the availability of suitable accommodation for the inmate if released,
  5. any other matter the Commissioner considers relevant.

Conditions of prisoner early parole

Section 276(4) of the Act requires allows the Commissioner during the prescribed period to 

  1. impose, vary or revoke an additional condition on a Commissioner’s order in the same way as the Parole Authority may under section 128 in respect of a parole order made under Part 6, and
  2. revoke the parole of an inmate under this section for any reason.

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Paul Gilchrist

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O’Brien Criminal & Civil Solicitors
p: 02 9261 4281
a: Level 4, 219-223 Castlereagh St,
Sydney NSW 2000

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