Introduction

In New South Wales, knowing what a non-parole period means is super important for offenders and everyone in the criminal justice system. Judges usually set this when sentencing someone to jail. This is the shortest time an inmate has to stay locked up before they can be let out on parole.

This guide aims to clarify the function and implications of non-parole periods within the NSW sentencing framework. By explaining key legislation such as the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Crimes (Administration of Sentences) Act 1999 (NSW), and detailing factors that influence the setting of these periods, this article will equip readers with a comprehensive understanding of how non-parole periods operate in NSW.

What is a Non-Parole Period?

Defining the Non-Parole Period

In NSW, prison sentences exceeding six months are typically structured into two distinct phases: the non-parole period and the parole period. The non-parole period is legally defined in the Crimes (Sentencing Procedure) Act 1999 (NSW) as the “minimum period for which the offender must be kept in detention in relation to the offence.” Essentially, the non-parole period represents the minimum duration an offender must serve in imprisonment before becoming eligible for release on parole.

When sentencing an offender to imprisonment, the court is generally required to set a non-parole period. Unless special circumstances warrant a shorter duration, the non-parole period must be at least three-quarters of the total sentence term. Additionally, in cases where an aggregate sentence is imposed for multiple offences, the court has the discretion to set a single non-parole period that encompasses all offences, ensuring it reflects the overall term of the sentence.

Purpose of Non-Parole Periods

The imposition of a non-parole period is rooted in the principle that justice necessitates an offender serving a minimum term of imprisonment. This minimum period in custody is determined by considering various elements of punishment, including:

• Deterrence: Aims to discourage the offender and others from committing similar offences.
• Objective Seriousness of the Offence: Considers the nature and consequences of the crime.
• Offender’s Individual Circumstances: Considers personal factors that may affect sentencing.

The non-parole period is designed to ensure that any potential reduction in sentence, aimed at facilitating rehabilitation, remains appropriately limited.

An important consideration in determining an appropriate non-parole period is the risk of re-offending. While the factors influencing the non-parole period are similar to those considered when fixing the overall sentence, their relative importance may differ. For instance, while the nature of the offence is critical in determining the total sentence, its deterrent effect on others becomes a more prominent factor when setting the non-parole period, often justifying a longer minimum term.

Standard Non-Parole Periods in NSW

Understanding Standard Non-Parole Periods 

Standard non-parole periods (SNPPs) serve as a guidepost for sentencing judges when determining the minimum time an offender must spend in prison before becoming eligible for parole. While these periods are not mandatory sentences, they are crucial reference points that promote consistency and transparency in sentencing.

According to the Crimes (Sentencing Procedure) Act 1999, a standard non-parole period represents the minimum time for an offence that falls in the middle of the range of objective seriousness. This designation means that SNPPs are established for offences considered to be of mid-range seriousness, based solely on the objective factors of the offence.

The primary purpose of SNPPs is to guide sentencing in cases that fall within this middle range of seriousness. However, it is important to note that considering a standard non-parole period does not limit other factors that must or may be considered when determining an appropriate sentence.

How Courts Use Standard Non-Parole Periods

When sentencing an offender for an offence with a standard non-parole period, the sentencing judge must take the SNPP into account. The Crimes (Sentencing Procedure) Act 1999 section 54B clarifies that SNPPs are a matter for the court to consider in determining the appropriate sentence.

However, courts are not strictly bound to impose the standard non-parole period. The legislation provides judicial discretion, recognising that each case is unique and may warrant a departure from the standard. Judges can set a non-parole period that is either longer or shorter than the SNPP based on specific reasons, typically related to:

• Aggravating Factors: Circumstances that may increase the severity of the offence or the culpability of the offender.
• Mitigating Factors: Circumstances that may decrease the severity of the offence or the culpability of the offender.

These factors are outlined in section 21A of the Crimes (Sentencing Procedure) Act 1999.

If a court decides to deviate from the standard non-parole period, it is required to document its reasons for this decision. This requirement ensures transparency in the sentencing process and provides an explanation for why a longer or shorter non-parole period was deemed appropriate in the specific circumstances of the case. In essence, SNPPs act as a benchmark, guiding the court toward a consistent sentence while still allowing for necessary adjustments based on the specifics of each case.

Legislation Governing Non-Parole Periods

Crimes (Sentencing Procedure) Act 1999

The determination of non-parole periods in NSW is primarily governed by the Crimes (Sentencing Procedure) Act 1999. This key piece of legislation defines the non-parole period as the minimum time an offender must remain in detention for an offence. Additionally, the Act includes a comprehensive table of standard non-parole periods for certain serious offences.

Part 4 Division 1A of the Act outlines offences to which standard non-parole periods apply. When sentencing an offender, standard non-parole periods represent the non-parole period for an offence that falls in the middle of the range of objective seriousness.

Key sections of the Crimes (Sentencing Procedure) Act 1999 include:

• Section 54B: Mandates that courts must consider any applicable standard non-parole period when determining an appropriate sentence for an offender.
• Section 44: Provides guidance to the court when setting the non-parole period.
• Section 46: Specifies that a court may not set a non-parole period if the imprisonment term is 6 months or less.

Violent or Sexual Offences

The Crimes (Sentencing Procedure) Act 1999 includes a comprehensive list of SNPP’s for different offences. Below we have reproduced some notable offences.

Offence	Standard non-parole period
Murder—where the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work	25 years
Murder—where the victim was a child under 18 years of age	25 years
Murder—in other cases	20 years
Section 26 of the Crimes Act 1900 (conspiracy to murder)	10 years
Sections 27, 28, 29 or 30 of the Crimes Act 1900 (attempt to murder)	10 years
Section 33 of the Crimes Act 1900 (wounding etc with intent to do bodily harm or resist arrest)	7 years
Section 33A (1) of the Crimes Act 1900 (discharging a firearm with intent to cause grievous bodily harm)	9 years
Section 61I of the Crimes Act 1900 (sexual assault)	7 years
Section 61J of the Crimes Act 1900 (aggravated sexual assault)	10 years
Section 61JA of the Crimes Act 1900 (aggravated sexual assault in company)	15 years
Section 61KD (1) of the Crimes Act 1900 (aggravated sexual touching)	5 years
Section 66DA of the Crimes Act 1900 (sexual touching—child under 10)	8 years
Section 66A of the Crimes Act 1900 (sexual intercourse—child under 10)	15 years
Section 66B of the Crimes Act 1900 (attempt, or assault with intent, to have sexual intercourse with a child under 10 years)	10 years
Section 66C (1) of the Crimes Act 1900 (sexual intercourse with a child 10–14 years)	7 years
Section 66C (2) of the Crimes Act 1900 (aggravated sexual intercourse with a child 10–14 years)	9 years
Section 66C (4) of the Crimes Act 1900 (aggravated sexual intercourse with a child 14–16 years)	5 years
Section 66EB (2) of the Crimes Act 1900 (procure a child under 14 years for unlawful sexual activity)	6 years
Section 66EB (2) of the Crimes Act 1900 (procure a child 14–16 years for unlawful sexual activity)	5 years
Section 66EB (2A) of the Crimes Act 1900 (meet a child under 14 years following grooming)	6 years
Section 66EB (2A) of the Crimes Act 1900 (meet a child 14–16 years following grooming)	5 years
Section 66EB (3) of the Crimes Act 1900 (groom a child under 14 years for unlawful sexual activity)	5 years
Section 66EB (3) of the Crimes Act 1900 (groom a child 14–16 years for unlawful sexual activity)	4 years

Drug Related Offences

Offence	Standard non-parole period
Section 23 (2) of the Drug Misuse and Trafficking Act 1985 (cultivation, supply or possession of prohibited plants), being an offence that involves not less than the large commercial quantity (if any) specified for the prohibited plant concerned under that Act	10 years
Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that— (a)  does not relate to cannabis leaf, and (b)  if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug	10 years
Section 24 (2) of the Drug Misuse and Trafficking Act 1985 (manufacture or production of commercial quantity of prohibited drug), being an offence that— (a)  does not relate to cannabis leaf, and (b)  if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug	15 years
Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that— (a)  does not relate to cannabis leaf, and (b)  if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves less than the large commercial quantity of that prohibited drug	10 years
Section 25 (2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that— (a)  does not relate to cannabis leaf, and (b)  if a large commercial quantity is specified for the prohibited drug concerned under that Act, involves not less than the large commercial quantity of that prohibited drug	15 years

Crimes (Administration of Sentences) Act 1999 (NSW)

The Crimes (Administration of Sentences) Act 1999 addresses various aspects related to imprisonment and parole in NSW. This legislation covers crucial matters, including:

• Eligibility for release on parole
• Conditions of parole
• Procedures for parole orders
• General obligations that offenders on parole must adhere to

Furthermore, the Act details the procedures and penalties for breaches of non-parole periods. Specifically:

• Section 254: If an offender is unlawfully absent from custody during their sentence and this absence occurs within the non-parole period, both the sentence term and the non-parole period are extended by the duration of the unlawful absence.
• Division 6, Section 56: Deals with correctional centre discipline. It states that if an offence is committed within a correctional centre during a non-parole period, a Visiting Magistrate can extend the non-parole period by up to six months.

By clearly outlining the responsibilities and consequences associated with non-parole periods, these Acts ensure consistency and fairness within the NSW criminal justice system.

Factors in Determining Non-Parole Periods

Objective Seriousness of the Offence

The objective seriousness of an offence plays a crucial role in setting a non-parole period. The Crimes (Sentencing Procedure) Act 1999 utilises SNPPs as guidelines for offences that fall in the middle range of seriousness based solely on objective factors.

Sentencing judges assess whether an offence fits within this mid-range by drawing on their general experience with similar cases. This evaluation is typically intuitive. When examining the objective seriousness, the court considers:

• The actus reus of the offence (the physical action of the offence)
• The consequences of the offender’s conduct
• Factors impacting the offender’s mens rea (the criminal intention of the offender)

These elements help determine if the offence aligns with the middle tier of objective seriousness for its category.

Aggravating and Mitigating Factors

Although SNPPs provide a foundational guide, courts have the discretion to adjust non-parole periods to be either longer or shorter based on specific circumstances. This flexibility is outlined in section 21A of the Crimes (Sentencing Procedure) Act 1999, allowing judges to tailor sentences to the unique aspects of each case.

Section 54B(3) of the Act specifies that any adjustments to the SNPP must be justified by factors listed in section 21A. These include both objective and subjective elements that influence the severity of the offence. Examples of subjective factors, referred to as “special circumstances,” encompass:

• Rehabilitation prospects
• Risk of institutionalisation
• Drug and alcohol addiction
• Ill health, disability, or mental illness
• Protective custody concerns
• Age of the offender
• Hardship to family members
• Sentencing practices of the past

These factors enable the court to consider the individual circumstances of both the offender and the offence, ensuring that the non-parole period is appropriate and just.

Breaching a Non-Parole Period

Penalties for Unlawful Absence

Unlawfully leaving custody during a non-parole period results in specific penalties under the Crimes (Administration of Sentences) Act 1999 (NSW) in NSW. These penalties include:

• Sentence Term Extension: Both the original sentence and the non-parole period are extended by the length of the unlawful absence.
• Additional Imprisonment Time: The offender will spend extra time in prison because of the absence.
• Delayed Parole Eligibility: The extension means the offender must wait longer before becoming eligible for parole.

Penalties for Correctional Centre Offences

Committing offences within a correctional centre during a non-parole period can lead to further penalties. According to Division 6 of the Crimes (Administration of Sentences) Act 1999, the following may apply:

• Non-Parole Period Extension: A Visiting Magistrate may extend the non-parole period by up to six months if an inmate is found guilty of an offence committed within the correctional centre.
• Additional Penalties: Beyond extending the non-parole period, other penalties may also be imposed for offences committed inside the correctional facility.

If you find yourself facing issues related to breaching a non-parole period, it is crucial to seek legal advice to understand your rights and options.

Conclusion

Understanding non-parole periods is essential within the New South Wales criminal justice system for both offenders and the broader community. The Crimes (Sentencing Procedure) Act 1999 mandates that a sentencing judge must set a non-parole period when imposing a sentence of imprisonment exceeding six months. This minimum period is the time an offender must serve in custody before becoming eligible for release on parole. Standard non-parole periods serve as a guidepost for sentencing, representing the non-parole period for an offence in the middle of the range of objective seriousness.

Navigating the complexities of non-parole periods requires expert legal advice. If you or someone you know is facing sentencing or has questions about non-parole periods in NSW, it is crucial to seek guidance from experienced criminal defence lawyers. Our team at Daoud Legal in Sydney possesses unparalleled expertise in sentencing law and can provide the necessary representation to ensure the best possible outcome. Contact us today for a consultation.

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