Criminal division – sentencing

11.8 Parole & Remissions

11.8.1 Parole

A court sentencing an adult to a term of imprisonment of 12 months or more has power - and in some circumstances an obligation - under s.11 of the Sentencing Act 1991 (Vic) to set a non-parole period.
In R v Josefski (2005) 13 VR 85; [2005] VSCA 265 at [43] Callaway JA, with whom Chernov JA agreed, reiterated principles applicable to fixing a non-parole period which he and Batt JA had earlier stated in R v VZ (1998) 7 VR 693:

“1. When a sentencing judge decides to fix a non-parole period that is unusual, reasons for taking that course should ordinarily be given.

2. A non-parole period may be unusual by comparison with other cases or having regard to the facts of the instant case or the course of the plea. Those examples are not exhaustive.

3. Where a non-parole period is unusual, a failure to give reasons does not inevitably betoken error but it invites appellant scrutiny.

4. The purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner’s rehabilitation through conditional freedom.

5. The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question when the prisoner should be eligible for release.

6. The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case.

7. It follows from 5 and 6 that a non-parole period cannot be fixed mechanically by some such method as taking two years, or one-third or one-quarter, off the head sentence.

8. All the relevant factors have to be taken into account. They are many and varied but they include-

(a) that a non-parole period has a penal element;

(b) that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and

(c) that the prisoner’s prospects of rehabilitation are almost always a significant consideration.”

His Honour also noted that rehabilitation achieved and in prospect is relevant to the head sentence as well as the non-parole period, but it is often given additional weight in fixing the latter. Another factor may be ill health: see R v VZ at 698. R v VZ has often been applied. See, for example, R v Pope (2000) 112 A Crim R 588 at 589; R v Harkness & Ors [2001] VSCA 87 at [1], [2] & [22]-[25]; R v Barnes [2003] VSCA 156 at [22]-[23], [25] & [31]-[35]; R v Kotzmann [1999] 2 VR 123 at 137; R v Alparslan [2007] VSCA 3 at [13]-[24]; R v Wooden [2006] VSCA 97 at [8]-[9]; R v Detenamo [2007] VSCA 160; R v Bertrand [2008] VSCA 182; R v Merritt [2008] VSCA 238 at [16]-[18].
See also Power v The Queen (1974) 131 CLR 623 (Barwick CJ, Menzies, Stephen and Mason JJ) at 627; R v Morgan & Morgan (1981-3) 7 A Crim R 146 (Kaye & Jenkinson JJ) at 154-155; Romero v The Queen [2011] VSCA 45 at [25]-[26]; R v Milkins [2011] VSCA 93 at [106]; R v Davy [2011] VSCA 98 at [26]-[28]; R v Green [2011] VSCA 236 at [11]-[18]; R v Rintoull [2011] VSCA 245 at [29]-[33]; DPP v Underwood [2011] VSCA 270; Felicite v The Queen [2011] VSCA 274 at [37]-[42] & [50]-[51]; R v Borthwick [2012] VSCA 180; R v Yost [2012] VSCA 181; DPP v Kumova [2012] VSCA 212; R v MA [2012] VSCA 214; John Gordon v The Queen [2013] VSCA 343 at [13]-[20].
In DPP (Vic) v Wallace [2012] VSCA 114 at [2] the Court of Appeal set out and discussed the four principles governing appellate review of a non-parole period.
In relation to the relevance to a non-parole period of the likelihood of the applicant’s deportation after serving his sentence, see R v Mann [2011] VSCA 189 at [36]-[43] and the cases cited therein – Guden v The Queen [2010] VSCA 196, [15] & R v Strestha (1991) 173 CLR 48, 57 (Brennan & McHugh JJ). See also R v Hutton [2011] VSC 484 at [41]-[42].
In DPP (Vic) v Yeomans [2011] VSCA 277 the unsuccessful appellant was aged 18 at the time of the offending and 19 on the date of sentence and had 120 previous convictions from eight court appearances between 2001 and 2009. He was sentenced to IMP 6y7m/4y in relation to 19 separate incidents of burglary (including 2 aggravated burglaries), robbery (including 2 armed robberies) and theft. At [3] Ashley JA approved the lengthy parole period:

“The sentencing judge allowed for a substantial potential period of parole. I think that it will be of critical importance, if the appellant is to have any chance of escaping from a pattern of repeat offending and gaol, that he have substantial assistance from the parole service in whatever period of parole is granted to him. Such assistance may provide the only antidote to the potentially corroding influence of years spent by a young man in an adult prison.”

In his judgment in R v Monardo [2005] VSCA 115 Callaway JA observed at [4] that:

“It is well established that a head sentence must be assessed on the basis that the prisoner may have to serve every day of it. A head sentence that is too severe cannot be saved by a moderate, or even merciful, non-parole period.”

In R v Boland [2007] VSCA 242 at [13]-[14] Nettle JA, with whom Ashley & Dodds-Streeton JJA agreed, said:

“While it is true that one must approach the task of sentencing on the basis that the prisoner may be required to serve every day of the head sentence, the process of setting a non-parole period is in some respects not dissimilar to concluding that some part of a sentence should be suspended. As was said by the High Court in Power v The Queen (1974) 131 CLR 623, 628:

‘[C]onfinement in a prison serves the same purposes, whether before or after the expiration of a non-parole period, and throughout it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. In a true sense, the non-parole period is the minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.’

“There is, of course, the difference between a partially suspended sentence and a non-parole period that, with the former, the prisoner may be certain that he will not be required to serve an immediate term any longer than is set. There may also be practical differences associated with the need to report and supervision.”

In R v Wunan Yu [2005] VSCA 18 Winneke P (with whom Charles & Buchanan JJA agreed), referring to the judgment of Marks J in R v Binder and Langer [1990] VR 563 at 569-570, to Shrestha v The Queen (1991) 173 CLR 48 and to s.5(2AA)(a) of the Sentencing Act 1991, held at [11] that the sentencing judge was wrong to take into account the possible effects of executive action or policy (namely the prospect of the appellant being deported to China) in determining not to set a non-parole period. Further, his Honour said, the circumstances of the case, including the youth and personal characteristics of the appellant, his “otherwise good character” and his rehabilitation made it highly desirable to fix a minimum term following which he would become eligible for parole. See also R v Arnold [1998] VSCA 34; R v Heazlewood [1998] VSCA 33; R v Glennon (No.3) [2005] VSCA 262 at [40]; Nguyen v The Queen [2010] VSCA 244; R v Adenopo [2011] VSCA 269.
The Court of Appeal has made it clear in R v Tin Yu Ng and R v Yik Lun Siu [2009] VSCA 218 at [28] that-

“[T]here is no usual or standard non-parole period: R v Tran [2006] VSCA 222, [27]-[28]. Looking at the typical non-parole period imposed, Callaway JA in R v Bolton & Barker [1998] 1 VR 692 observed at 699:

‘As with the discount appropriate to a plea of guilty, there is no fixed ratio between a head sentence and a non-parole period. In the majority of cases the proportion is between two-thirds and three-quarters, but both shorter and longer periods are found.’”

Both R v Bolton and R v Tran were referred to with approval by the Court of Appeal in R v Marino [2011] VSCA 133 at [45]-[47].

By contrast, when sentencing a child to a period of detention in a YRC or YJC, neither the Supreme Court, the County Court nor the Children’s Court has power to set a non-parole period, whatever the period of detention imposed. This is so whether the child is sentenced under ss.32-34 of the Sentencing Act or s.410 or s.412 of the CYFA. A decision to release a child on parole is an administrative decision taken, as the case may be-

• 
  pursuant to s.454(1) by the Youth Residential Board [see ss.431-441 & 462 of the CYFA]; or
  
• 
  pursuant to s.458(1) by the Youth Parole Board [see ss.442-452 & 463 of the CYFA]-
  

after a review of the case made by the respective Board. This structure was criticised by the Court of Appeal in R v Hill [1996] 2 VR 496 at 504-5 but it remains the law:

"[T]he…fact that the Youth Parole Board (which, unlike a court, is not obliged to make public its decisions) and not any court, decides when a young offender will be released, appears to provide but little support for the ideal of truth in sentencing."

Though every case depends on its individual circumstances, the Youth Parole Board/Youth Residential Board often considers eligibility for parole of young persons who have been sentenced to YJC/YRC detention of 6 months or more. However, this is not a universal rule.
Under ss.455(2) & 459(2) of the CYFA, a person released on parole is regarded as still being under sentence and as not having served his or her period of detention.
Sections 456(1) & 460(1) of the CYFA empower the respective Boards to cancel parole at any time before the end of the parole period. Sections 456(4) & 460(4) empower each Board to cancel a person's parole, whether or not the parole period may already have ended, if the person is sentenced to a term of imprisonment or period of detention of more than 3 months in respect of an offence committed during the parole period. Sections 457 & 461 empower the respective Boards to release a detainee on parole more than once.

11.8.2 Remissions

Though, again, every case depends on its individual circumstances, a child who is serving a sentence of YJC or YRC detention of less than 6 months is sometimes given a remission for satisfactory behaviour. Remission for satisfactory behaviour in custody is regulated by reg.34 of Children, Youth and Families Regulations 2007 [S.R.No.21/2007].