The courts have the sole responsibility for sentencing offenders. Only courts can impose a sentence and set a non-parole period as part of a sentence of imprisonment.
The Adult Parole Board has no role in the sentencing process and cannot change a sentence imposed by a court.
When a court finds a person guilty of a crime, the court has to decide the appropriate sentence, having regard to the circumstances of the offender and his or her conduct. When deciding what sentence to impose, the courts must act in accordance with the law. Courts are required by law to take into account a range of factors including (amongst other things):
- The maximum penalty for the offence prescribed in legislation
- The nature and gravity of the offence
- Current sentencing practice
- The offender’s culpability
- The impact of the offence on any victim (the court may receive a victim impact statement to inform it of the impact of the offending conduct on a victim)
- Whether the offender pleaded guilty to the offence and the stage of the proceedings at which they did so
- The offender’s previous character, including their prior criminal history.
Sentences can only be imposed to achieve the purposes of punishing the offender and protecting the community from the offender, deterring the offender or others from committing similar offences, denouncing the offender’s conduct, and establishing conditions for the rehabilitation of the offender. A court must not impose a sentence that is more severe than is necessary to achieve the purpose or purposes for which it is imposed. Imprisonment is the most severe sentencing option available to the courts.
All sentences may be appealed to a higher court by either the offender or prosecution.
If a court has imposed a sentence of imprisonment with a non-parole period, the non-parole period is the minimum time that the offender must serve in prison.
If a prisoner applies to serve part of their prison sentence in the community on parole, the Adult Parole Board decides whether the prisoner:
- should be released on parole
- immediately after the non-parole period has expired, or
- at some later time in the offender’s sentence; or
- should serve the whole of his or her sentence in prison and be released without parole supervision or support.
The Adult Parole Board has no role in setting the sentence or the non-parole period. The Board’s role is not to decide whether the offender has been punished too much or not enough. The Board cannot decide to make the offender serve longer in prison to denounce his or her offence or to deter him or her or someone else from committing a similar offence. This is because those are sentencing considerations and are solely matters for the courts.
The Board’s role is to consider the risk in of the prisoner’s transition back into the community.
Normally, if a prisoner is released on parole in accordance with a sentence, it will be toward the end of the sentence as they are coming toward the time that they will be released anyway when their sentence lapses.
During his or her time in prison, a prisoner’s risk, behaviour, and prospects of rehabilitation may change. The Board’s decision about whether to grant parole is based on information provided to it about the prisoner’s risk to the community at the time when the Board has to consider whether to release him or her back into the community.
When courts must impose a non-parole period
Not all prison sentences include a non-parole period. In accordance with the Sentencing Act 1991 (opens in new window), this depends on the length of the prison sentence.
If the length of the prison sentence is more than 24 months, the sentencing court must fix a non-parole period, unless the nature of the offence or the offender’s history would make parole inappropriate.
If the length of the prison sentence is between 12 and 24 months, the sentencing court is not required to, but may decide to, fix a non-parole period.
If the length of the prison sentence is less than 12 months, a non-parole period cannot be fixed by the sentencing court, therefore parole is not possible.
A non-parole period must be at least 6 months less than the prison sentence.
The courts set a non-parole period for most prisoners who are sentenced to imprisonment for a maximum term of life. However, in Victoria there is a small number of prisoners who have been sentenced to a term of imprisonment for life without a non-parole period. This means that they are not eligible for release on parole at any time during their prison sentence.