Part 7 Revocation and reinstatement by Parole Authority of certain orders
Introductory note. This Part applies to the revocation and reinstatement of various kinds of orders. It deals with the following matters:(a) the revocation and reinstatement of intensive correction orders (Division 1),(b) the revocation and reinstatement of home detention orders (Division 2),(c) the revocation of parole orders (Division 3),(d) post-revocation procedures and rights of appeal (Division 4),(e) the giving of certain directions by the Supreme Court and rights of appearance in related proceedings (Division 5),(f) other miscellaneous matters (Division 6).
Division 1 Intensive correction orders
162 Conduct of inquiry into suspected breach of obligations
(1) If the Parole Authority has reason to suspect that an offender has failed to comply with the offender’s obligations under an intensive correction order, the Parole Authority may, whether or not the order has expired, conduct an inquiry into the matter.(2) The offender to whom the intensive correction order relates may make submissions to the Parole Authority in relation to the matters under inquiry.
163 Revocation of intensive correction order
(1) The Parole Authority may, on its own initiative or on the recommendation of the Commissioner, make an order (a revocation order) revoking an intensive correction order:(a) if it is satisfied that the offender has failed to comply with the offender’s obligations under the order, or(b) if it is satisfied that the offender is unable to comply with the offender’s obligations under the order as a result of a material change in the offender’s circumstances, or(c) if the offender fails to appear before the Parole Authority when called on to do so under section 180, or(d) if the offender has applied for the order to be revoked.(2) The Parole Authority may revoke an offender’s intensive correction order on the recommendation of the Commissioner if it is satisfied that health reasons or compassionate grounds exist that justify its revocation.(3) If an intensive correction order is revoked under subsection (2), the Parole Authority may, on the application of the Commissioner, make such of the orders sought by the Commissioner in relation to the offender as it considers appropriate.(4) The Parole Authority must revoke an intensive correction order that it has reinstated under section 168A (1A) if, at any time during the remainder of the term of the sentence to which the order relates, the offender is sentenced to a term of imprisonment by way of full-time detention that is to be served consecutively (or partly consecutively) with the sentence to which the order relates.(5) A revocation order may be made:(a) whether or not the offender has been called on to appear before the Parole Authority, and(b) whether or not the Parole Authority has held an inquiry.(6) A revocation order must state the reason for which it is made.
164 Effect of revocation order
(1) A revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on such earlier date as the Parole Authority thinks fit.(2) The earliest date on which the revocation order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender’s obligations under the intensive correction order.(3) If an offender is not taken into custody until after the day on which the revocation order takes effect, the term of the offender’s sentence is, by this subsection, extended by the number of days the person was at large after the order took effect.
165 Parole Authority may reinstate revoked intensive correction order
(1) If an offender’s intensive correction order has been revoked under this Division or under section 179, the Parole Authority:(a) on the application of the offender, and(b) subject to Part 5 of the Crimes (Sentencing Procedure) Act 1999,may make an order reinstating the offender’s intensive correction order in respect of the remaining balance of the offender’s sentence.(2) Such an application:(a) may not be made until the offender has, since the intensive correction order was revoked, served at least 1 month of the offender’s sentence by way of full-time detention, and(b) must state what the offender has done, or is doing, to ensure that the offender will not fail to comply with the offender’s obligations under the intensive correction order in the event that it is reinstated.(3) Before making an order reinstating an offender’s intensive correction order, the Parole Authority must refer the offender to the Commissioner for assessment as to the suitability of the offender for intensive correction in the community.(4) Part 5 of the Crimes (Sentencing Procedure) Act 1999 applies to and in respect of the Parole Authority and the offender in relation to the making of an intensive correction order under this section in the same way as it applies to and in respect of a court and an offender in relation to the making of an intensive correction order under that Act.(5) The Parole Authority may not make an order under subsection (1) if the offender is subject to a sentence of imprisonment by way of full-time detention that is yet to commence.
165A Parole Authority may order home detention
(1) This section applies if the Parole Authority revokes an intensive correction order and, at the time that the revocation order takes effect, the remainder of the term of the sentence to which the intensive correction order relates is 18 months or less.(2) The Parole Authority may make an order directing that the remainder of the term of the sentence is to be served by way of home detention.(3) However, the Parole Authority may not make an order under subsection (2) if the offender is subject to a sentence of imprisonment by way of full-time detention that is yet to commence.(4) Subject to subsection (5), Part 6 of the Crimes (Sentencing Procedure) Act 1999 applies to and in respect of the Parole Authority and the offender in relation to the making of a home detention order under this section in the same way as it applies to and in respect of a court and an offender in relation to the making of a home detention order under that Act.(5) The reference of an offender for assessment in relation to the making of a home detention order under this section is to be made after, and not before, the intensive correction order referred to in subsection (1) is revoked.
165B Release of offender pending assessment for home detention
(1) On referring an offender for assessment in relation to the making of a home detention order under section 165A, the Parole Authority may make an order (a temporary release order) releasing the offender from custody or permitting the offender to remain at large, subject to such supervision as is prescribed by the regulations, pending the Parole Authority’s decision as to whether or not to make the home detention order.(2) An offender’s temporary release order:(a) may be revoked by the Parole Authority at any time, and(b) must be revoked by the Parole Authority when it makes its decision as to whether or not to make a home detention order under section 165A in respect of the offender.(3) The sentence to be served by the offender in respect of whom a temporary release order is made is, by this section, extended:(a) by the period for which the offender is absent from custody pursuant to the order, and(b) in the case of an offender for whom a warrant is issued under section 181 (1A), by the period between the issue of the warrant and the offender being taken into custody under the warrant.
165C Conditions of home detention as to non-association and place restriction
(1) The conditions to which a home detention order under section 165A is subject may include either or both of the following:(a) provisions prohibiting or restricting the offender from associating with a specified person,(b) provisions prohibiting or restricting the offender from frequenting or visiting a specified place or district.(2) A condition referred to in subsection (1) (a) or (b) is suspended while the offender is in lawful custody.(3) An offender does not contravene a prohibition or restriction as to his or her association with a specified person:(a) if the offender does so in compliance with an order of a court, or(b) if, having associated with the person unintentionally, the offender immediately terminates the association.(4) An offender does not contravene a requirement not to frequent or visit a specified place or district if the offender does so in compliance with an order of a court.(5) In this section, associate with means:(a) to be in company with, or(b) to communicate with by any means (including post, facsimile, telephone and email).
Division 2 Home detention orders
166 Conduct of inquiry into suspected breach of obligations
(1) If the Parole Authority has reason to suspect that an offender has failed to comply with the offender’s obligations under a home detention order, the Parole Authority may, whether or not the order has expired, conduct an inquiry into the matter.(2) The offender to whom the home detention order relates may make submissions to the Parole Authority in relation to the matters under inquiry.
167 Revocation of home detention order
(1) The Parole Authority may make an order (a revocation order) revoking a home detention order:(a) if it is satisfied that the offender has failed to comply with the offender’s obligations under the order, or(b) if the offender fails to appear before the Parole Authority when called on to do so under section 180, or(c) if the offender has applied for the order to be revoked, or(d) if a person with whom the offender resides during the period of the offender’s home detention has withdrawn in writing, in the form prescribed by the regulations, his or her consent to the continued operation of the home detention order,and may do so either on its own initiative or on the recommendation of the Commissioner or a probation and parole officer.(2) A revocation order may be made:(a) whether or not the offender has been called on to appear before the Parole Authority, and(b) whether or not the Parole Authority has held an inquiry.(3) A revocation order must state the reason for which it is made.(4) If it is satisfied that the offender has failed to comply with the offender’s obligations under a home detention order but is not of the opinion that the order should be revoked, the Parole Authority may instead impose further conditions on the order, or vary any of the existing conditions of the order, in accordance with section 103.(5) This section does not apply to an offender’s failure to comply with the offender’s obligations under a home detention order if that failure has been dealt with in accordance with the regulations referred to in section 106.(6) The Parole Authority must revoke a home detention order:(a) that it has made under section 165A, or(b) that it has reinstated under section 168A (1),if, at any time during the remainder of the term of the sentence to which the order relates (including any period during which the offender is released on parole under a parole order), the offender is sentenced to a term of imprisonment by way of full-time detention that is to be served consecutively (or partly consecutively) with the sentence to which the order relates.
168 Effect of revocation order
(1) A revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on such earlier date as the Parole Authority thinks fit.(2) The earliest date on which a revocation order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender’s obligations under the home detention order.(3) If an offender is not taken into custody until after the day on which the revocation order takes effect:(a) the term of the offender’s sentence, and(b) if the order takes effect during a non-parole period of the sentence, the non-parole period of the sentence,are, by this subsection, extended by the number of days the person was at large after the order took effect.
168A Parole Authority may reinstate revoked home detention order or prior revoked intensive correction order
(1) If:(a) an offender’s home detention order has been revoked under this Division or section 179, and(b) the offender has, since that revocation, served at least 3 months of the offender’s sentence by way of full-time detention,the Parole Authority may, on the application of the offender and subject to Part 6 of the Crimes (Sentencing Procedure) Act 1999, make an order reinstating the offender’s revoked home detention order in respect of the remaining balance of the offender’s sentence.(1A) In the case of an offender whose home detention order was made under section 165A following revocation of an intensive correction order under Division 1, the Parole Authority may instead, on the application of the offender and subject to Part 5 of the Crimes (Sentencing Procedure) Act 1999, make an order reinstating the revoked intensive correction order in respect of the remaining balance of the offender’s sentence.(2) Before making an order referred to in subsection (1) or (1A), the Parole Authority must refer the offender to the Probation and Parole Service for assessment as to the suitability of the offender for home detention or intensive correction, as the case requires.(3) Parts 5 and 6 of the Crimes (Sentencing Procedure) Act 1999 apply to and in respect of the Parole Authority and the offender in relation to the making of an intensive correction order or home detention order under this section in the same way as they apply to and in respect of a court and an offender in relation to the making of an intensive correction order or home detention order under that Act.(4) The Parole Authority may not make an order under subsection (1) or (1A) if the offender is subject to a sentence of imprisonment by way of full-time detention that is yet to commence.
169 Conduct of inquiry into suspected breach of obligations or medical recovery
(1) If the Parole Authority has reason to suspect that an offender has failed to comply with the offender’s obligations under a parole order, the Parole Authority may, whether or not the order has expired, conduct an inquiry into the matter.(1A) In the case of an offender who has been granted parole on the grounds that he or she is in imminent danger of dying or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, as referred to in section 154A (3), the Parole Authority may also conduct an inquiry if it suspects that those grounds no longer exist.(2) The offender to whom the parole order relates may make submissions to the Parole Authority in relation to the matters under inquiry.(3) The Parole Authority is not required to inquire into a possible contravention of a parole order made by a court unless the offender to whom the order relates is required by the conditions of the order to be supervised.
170 Revocation of parole order
(1) The Parole Authority may make an order (a revocation order) revoking a parole order:(a) if it is satisfied that the offender has failed to comply with the offender’s obligations under the order, or(a1) in the case of an offender who has been granted parole on the grounds that he or she is in imminent danger of dying or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person, as referred to in section 154A (3), if it is satisfied that those grounds no longer exist, or(b) if the offender fails to appear before the Parole Authority when called on to do so under section 180, or(c) if the offender has applied for the order to be revoked,and may do so either on its own initiative or on the recommendation of the Commissioner or a probation and parole officer.(2) A revocation order may be made:(a) whether or not the offender has been called on to appear before the Parole Authority, and(b) whether or not the Parole Authority has held an inquiry.(3) A revocation order must state the reason for which it is made.(4) If it is satisfied that the offender has failed to comply with the offender’s obligations under a parole order but is not of the opinion that the order should be revoked, the Parole Authority may instead impose further conditions on the order, or vary any of the existing conditions of the order, in accordance with section 128.
171 Effect of revocation order
(1) A revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on such earlier date as the Parole Authority thinks fit.(2) The earliest date on which a revocation order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender’s obligations under the parole order.(3) If an offender is not taken into custody until after the day on which the revocation order takes effect, the term of the offender’s sentence is, by this subsection, extended by the number of days the person was at large after the order took effect.
172 Request by State to revoke parole order
The Attorney General or the Director of Public Prosecutions may request the Parole Authority to exercise its powers to revoke a parole order in relation to a serious offender on the ground that the order has been made on the basis of false, misleading or irrelevant information.
172A Interim suspension of parole order
(1) On the application of the Commissioner, a judicial member of the Parole Authority:(a) may make an order suspending an offender’s parole order, and(b) if the offender is not then in custody, may issue a warrant for the offender’s arrest.(2) An application under subsection (1) may be made in person or by telephone, electronic mail or facsimile transmission.(3) Action under subsection (1) may only be taken in relation to an offender’s parole order if the judicial member is satisfied:(a) that the Commissioner has reasonable grounds for believing:(i) that the offender has failed to comply with the offender’s obligations under the parole order, or(ii) that there is a serious and immediate risk that the offender will leave New South Wales in contravention of the conditions of the parole order, or(iii) that there is a serious and immediate risk that the offender will harm another person, or(iv) that there is a serious and immediate risk that the offender will commit an offence, and(b) that, because of the urgency of the circumstances, there is insufficient time for a meeting of the Parole Authority to be convened to deal with the matter.(4) If an application under this section is made otherwise than in person, the judicial member may furnish the applicant with a suspension order or arrest warrant:(a) by sending a copy of the order or warrant to the applicant by electronic mail or facsimile transmission, or(b) by dictating the terms of the order or warrant to the applicant by telephone.(5) A document:(a) that contains:(i) a copy of a suspension order or arrest warrant that the judicial member has sent by electronic mail or facsimile transmission, or(ii) the terms of a suspension order or arrest warrant that the judicial member has dictated by telephone, and(b) that bears a notation:has the same effect as the original suspension order or arrest warrant.(i) as to the identity of the judicial member, and(ii) as to the time at which the copy was sent or the terms dictated,(6) A suspension order may be revoked by any judicial member of the Parole Authority or by the Commissioner.(7) Unless sooner revoked, a suspension order ceases to have effect at the end of 28 days after it is made or, if the offender is not in custody when it is made, at the end of 28 days after the offender is taken into custody.(8) While a suspension order is in force, the parole order to which it relates does not have effect.(9) An arrest warrant is sufficient authority for a police officer to arrest the offender named in the warrant, to convey the offender to the correctional centre specified in the warrant and to deliver the offender into the custody of the general manager of that correctional centre.(10) In this section:arrest warrant means a warrant referred to in subsection (1) (b).
suspension order means an order referred to in subsection (1) (a).
Division 4 Post-revocation procedures and rights of appeal
(1) The Parole Authority must cause a notice (a revocation notice) to be served on an offender if the Parole Authority revokes the offender’s intensive correction order, home detention order or parole order.(1A) A revocation notice must be served:(a) as soon as practicable after the revocation of the order concerned, unless paragraph (b) applies, or(b) if the Parole Authority issues a warrant under section 181 in relation to the offender, as soon as practicable after the warrant has been executed and, in any case, within 21 days after the offender is returned to custody.(2) A revocation notice:(a) must be in the form prescribed by the regulations, and(b) must set a date (occurring not earlier than 14, nor later than 28, days after the date on which it is served) on which the Parole Authority is to meet:(i) for the purpose of reconsidering the revocation of the intensive correction order, home detention order or parole order, and(ii) for the purpose of reconsidering the date specified by the notice as the date on which the revocation order takes effect, if that date is an earlier date than the date on which the revocation order was made, and(c) must require the offender to notify the Secretary of the Parole Authority, not later than 7 days before the date so set, if the offender intends to make submissions to the Parole Authority in relation to the reconsideration of those matters, and(d) must be accompanied by:(i) a copy of the revocation order by which the intensive correction order, home detention order or parole order was revoked, and(ii) copies of the reports and other documents used by the Parole Authority in making the decision to revoke the intensive correction order, home detention order or parole order and, if appropriate, the decision to specify the earlier day.
(1) If an offender duly notifies the Secretary of the Parole Authority that the offender intends to make submissions to the Parole Authority, the Chairperson of the Parole Authority must convene a meeting of the Parole Authority, on the date set by the revocation notice, to conduct a hearing for either or both of the following purposes, as the case requires:(a) for the purpose of reconsidering the revocation of the intensive correction order, home detention order or parole order, or(b) for the purpose of reconsidering the date specified by the notice as the date on which the revocation order takes effect, if that date is an earlier date than the date on which the revocation order was made.(2) At the hearing, or at a hearing conducted at a subsequent meeting, the offender may make submissions to the Parole Authority with respect to the revocation of the intensive correction order, home detention order or parole order.
(1) After reviewing all the reports, documents and other information placed before it, the Parole Authority must decide whether or not:(a) to rescind the revocation of the intensive correction order, home detention order or parole order concerned, or(b) to rescind or vary the specification of the earlier day.(1A) Despite subsection (1) (a) and (b), the Parole Authority may not rescind the revocation of:(a) (Repealed)(b) an intensive correction order that it has revoked under section 163 (4), or(c) a home detention order that it has revoked under section 167 (6),except in such circumstances as may be prescribed by the regulations as constituting manifest injustice.(2) (Repealed)(3) A decision under this section has effect according to its terms even if the intensive correction order, home detention order or parole order concerned has expired.(4) If the Parole Authority rescinds the revocation of the intensive correction order, home detention order or parole order concerned, any other intensive correction order, home detention order or parole order consequentially revoked under section 179 is revived and has effect as if it had not been revoked.(5) If the Parole Authority rescinds the revocation of the intensive correction order, home detention order or parole order concerned, the Parole Authority must cause the reasons for its decision to be recorded in its minutes.
175A Review not available in certain circumstances
If an offender’s intensive correction order, home detention order or parole order is revoked within 30 days before the date on which the offender’s sentence expires (ignoring any extension of the sentence under section 168 (3)):(a) the revocation notice referred to in section 173 is not required to comply with the requirements of section 173 (2) (b) or (c), and(b) the offender is not entitled to seek reconsideration of the revocation of the order under section 174.
Division 5 Applications to Supreme Court
176 Application to Supreme Court by offender
(1) If:(a) the Parole Authority revokes an intensive correction order, home detention order or parole order, and(b) the offender to whom the intensive correction order, home detention order or parole order relates alleges that the order has been revoked on the basis of false, misleading or irrelevant information,the offender may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant.(2) The Supreme Court may give such directions with respect to the information as it thinks fit.(3) An application under this section is to be considered by the Supreme Court if and only if it is satisfied that the application is not an abuse of process and that there appears to be sufficient evidence to support the application.(4) This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority’s decision otherwise than on the grounds referred to in subsection (1).
177 Application to Supreme Court by State
(1) If:(a) the Parole Authority refuses or fails within 28 days after a request by the Attorney General or the Director of Public Prosecutions under section 172 to revoke a parole order in relation to a serious offender, and(b) the Attorney General or the Director of Public Prosecutions alleges that the parole order has been made on the basis of false, misleading or irrelevant information,the Attorney General or the Director of Public Prosecutions may, in accordance with rules of court, apply to the Supreme Court for a direction to be given to the Parole Authority as to whether the information was false, misleading or irrelevant and the Supreme Court may give such directions with respect to the information as it thinks fit.(2) This section does not give the Supreme Court jurisdiction to consider the merits of the Parole Authority’s decision otherwise than on the grounds referred to in subsection (1).
178 Appearance in person of offender
(1) At the hearing or determination of an application under this Division, an offender is not entitled to appear in person, except by leave of the Supreme Court.(2) The power of the Supreme Court to grant an offender leave to appear in person at the hearing or determination of an application under this Division may be exercised by any Judge of that Court, but no appeal lies to that Court against the refusal of a Judge of that Court to grant leave to appear.
179 Consequential revocation of other orders
(1) If:(a) an offender’s intensive correction order, home detention order or parole order is revoked under this Part, or(b) an offender is sentenced to imprisonment for more than one month,the Parole Authority may revoke any or all of the other intensive correction orders, home detention orders or parole orders that are in force, or are yet to come into force, in relation to the offender.(2) Divisions 1–4 do not apply to the revocation of an intensive correction order, home detention order or parole order under this section, except as provided by subsection (4).(3) No appeal lies against the revocation of an intensive correction order, home detention order or parole order under this section.(4) Section 165A applies to an intensive correction order revoked under this section in the same way as it applies to an intensive correction order revoked under Division 1 of this Part.
179A Revocation of first of consecutive home detention orders—Parole Authority to seek new assessment
(1) If:(a) an offender’s home detention order is revoked under this Part, and(b) the offender is the subject of one or more other home detention orders yet to come into force (being an order or orders that the Parole Authority has declined to revoke),the Parole Authority must refer the offender to the Probation and Parole Service for assessment as to the suitability of the offender for home detention in accordance with Part 6 of the Crimes (Sentencing Procedure) Act 1999 before the other order (or, if more than one, the first order that would commence) comes into force.(2) If, following the assessment, the Parole Authority determines that the offender is not suitable for home detention, the Parole Authority must revoke the offender’s next home detention order.(3) Divisions 1, 2 and 3 do not apply to the revocation of a home detention order under this section.(4) No appeal lies against a revocation of a home detention order under this section.
179B Revocation of consecutive intensive correction orders
(1) When the Parole Authority revokes an offender’s intensive correction order under this Part, the Parole Authority must at the same time make an order revoking any other intensive correction order to which the offender is subject at that time (including any order that is yet to come into force).(2) No appeal lies against a revocation of an intensive correction order under this section.
180 Offenders to attend Parole Authority when called on
(1) For the purposes of an inquiry under this Part, the Parole Authority:(a) may call on an offender to appear before it and, if the offender does not appear, may issue a warrant for the offender’s arrest, or(b) if of the opinion that the offender will not appear if called on to do so, may, without calling on the offender to appear before it, issue a warrant for the offender’s arrest.(2) A warrant under this section:(a) is to be signed by a judicial member of the Parole Authority (as referred to in section 183 (2) (a)), and(b) is sufficient authority for a police officer to arrest the offender named in the warrant, to convey the offender to the place specified in the warrant and to deliver the offender into the custody of the Parole Authority.(3) The regulations may make provision for or with respect to the form of any warrants issued for the purposes of this section.
181 Warrants committing offenders to correctional centres
(1) If the Parole Authority:(a) revokes an intensive correction order, home detention order or parole order, or(b) decides not to make a home detention order under section 165A with respect to an offender the subject of a temporary release order under section 165B,it may issue a warrant committing the offender to a correctional centre to serve the remainder of the sentence to which the order relates by way of full-time detention.(1A) If the Parole Authority revokes a temporary release order under section 165B, it may issue a warrant committing the offender to a correctional centre pending the Parole Authority’s decision as to whether or not to make a home detention order under section 165A.(1B) The Parole Authority may, by order, recall or suspend any warrant that it has issued under this section.(2) A warrant or order under this section is to be signed by a judicial member of the Parole Authority as referred to in section 183 (2) (a).(3) Subject to any order under subsection (1B), a warrant under this section is sufficient authority:(a) for any police officer to arrest, or to have custody of, the offender named in the warrant, to convey the offender to the correctional centre specified in the warrant and to deliver the offender into the custody of the general manager of that correctional centre, and(b) for the general manager of the correctional centre specified in the warrant to have custody of the offender named in the warrant for the remainder of the sentence to which the warrant relates, or pending the Parole Authority’s decision as to whether or not to make a home detention order under section 165A, as the case requires.(4) The regulations may make provision for or with respect to the form of any warrants or orders issued for the purposes of this section.
182 Functions may be exercised after order has expired
The Parole Authority may exercise any function under this Part in relation to an intensive correction order, home detention order or parole order, even if the order has expired.