Imprisonment
Prison can have various functions:
•Custodial: Such as where people are held in custody on remand (i.e. they are not given bail);
•Coercive: Such as where it is used to ensure enforcement of payment (i.e. in default periods of imprisonment); and
•Punitive: So considered as the prisoner is subjected to removal of rights, restriction of their liberty; as well as to psychological, emotional and physical risks.
Imprisonment as a sentence has a clear purpose of punishment and community protection (incapacitation).
Under the Penalties and Sentences Act (Qld) 1992 remember that imprisonment is generally a last resort.
Convictions are required to be recorded. This is mandatory (s 143).
Concurrent/Cumulative Orders of Imprisonment
Generally, if more than one term of imprisonment is ordered it is taken to be served concurrently (i.e. at the same time) unless otherwise ordered (s155). A court has a discretion to order imprisonment be cumulative (i.e. that the periods of imprisonment be added together s156). And in some instance cumulative orders are mandatory. This includes if the new offence is within schedule 1 (as for Serious Violent Offences) and was committed while the offender was serving a term of imprisonment, released on post-prison community based release or parole or while they were on a leave of absence under the Corrective Services Act or at large after escaping (s156A). But note that cumulative orders are prohibited upon a sentence of life (R v Mickelo [1993] 1 Qd R 230).
Pre-Sentence Custody Declaration
If imprisonment is ordered the pre-sentence custody in relation to the offence (as long as they are not in custody for any other reason) MUST be deducted i.e. custody is effectively backdated (s159A).
Parole
Note that prisoners usually are entitled to apply for parole sometime during their period of imprisonment. The usual times that prisoners are entitled to parole are outlined in the Corrective Services Act (Qld) 2006. For those serving life, they are entitled to apply for parole at 15-30 years (s 181); for those serving life for a repeat serious child sex offence - 20 years (s181A); for those for whom a Serious Violent Offence Declaration has been made, they are entitled to parole at the lesser of 80%/15 years (s 182); and for most others 50% (s 184(2)). During parole an offender must not commit an offence. Parole will be automatically cancelled if they have committed an offence and they are sentenced to imprisonment (s 209).
Some relevant definitions for parole
Parole release date: The date upon which a prisoner must be released to parole. This date is set by the sentencing court for eligible prisoners (court-ordered parole).
Parole eligibility date: The date upon which a prisoner becomes eligible to apply for release to parole by a Parole Board. If no recommendation is made by a sentencing court, a prisoner will become eligible for parole after the regular times. A prisoner with a parole eligibility date can only be released to parole if the Parole Board considers their release suitable (board-ordered parole).
Sex Offence: An offence listed in schedule 1 of the Corrective Services Act (Qld) 2006.
Court-ordered Parole
Courts must fix a release date for prisoners who are sentenced to 3 years or under (except sex offenders and those whose charges have been declared Serious Violent Offences) (s160B Penalties and Sentences Act (Qld) 1992). A prisoner will be released to court ordered parole on the date fixed by a court. A prisoner will be released on parole on their parole release date unless the prisoner has been remanded in custody on another offence. The sentencing court has discretion in setting the fixed release date (with some restrictions). A court may fix the date of sentence as the parole release date.
Board-ordered Parole
Courts must fix parole eligibility dates for sentences more than 3 years and for Serious Violent Offences or sex offences if an offender has a current parole eligibility date (s160C(2)/s160D(2)). Otherwise it is discretionary (s160C(3)/s160D(3)).
A prisoner becomes eligible to apply to a parole board for release at their parole eligibility date. A parole eligibility date is either fixed by a court or is calculated in accordance with the Corrective Services Act (see above for fall back application times). Once a parole eligibility date has been set by a court, a new parole eligibility date must be made whenever a prisoner is re-sentenced (ss 160C and 160D).