This article was written by Fernanda Dahlstrom - Content Editor - Brisbane
Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.
Imprisonment (WA)
Imprisonment is the most severe penalty that courts in Western Australia can impose. Imprisonment is a sentence of last resort and must only be imposed where no lesser penalty is appropriate. Sentences of imprisonment can be suspended for a designated operational period where the court considers this appropriate. Prisoners can apply for parole once they become eligible. People charged with criminal offences in Western Australia can also be imprisoned if they have been refused bail by police or by a court or if they have failed to pay fines.
Western Australia has 16 government-run prisons and one private prison housing over 6,000 adult prisoners. Offenders between the ages of 10 and 18 can be sentenced to youth detention in Western Australia. Western Australia has only one detention centre for young people, which is located in Canning Vale.
Imprisonment in Western Australia is ordered under the Sentencing Act 1995 and regulated by the Prisons Act 1981.
Remand
If a person is refused bail in Western Australia, they will be kept in prison on remand until the charges are finalised or until a court grants them bail. If the person is found guilty and sentenced to imprisonment, the time they have spent in prison on remand may be taken into account when their term of imprisonment is determined.
Sentences of imprisonment
A court can sentence an offender to imprisonment when they have been found guilty of an offence that carries a maximum penalty of imprisonment. Under Section 35 of the Sentencing Act, a court must provide written reasons when sentencing a person to a term of imprisonment of less than 12 months. These reasons must explain why no lesser sentencing option was appropriate.
Western Australian courts cannot impose a sentence of imprisonment unless the aggregate term is at least six months. There is an exception to this where the person is already serving a sentence of imprisonment for other offences (Section 86).
Parole
Where a West Australian court imposes a sentence of imprisonment of four years or less, the earliest parole eligibility date is halfway through the sentence. When a person is sentenced to a term of imprisonment of more than four years, the earliest parole eligibility date is two years from the end of the sentence.
A parole eligibility order cannot be made for terms of imprisonment of less than six months.
A court can refuse to make a parole eligibility order in respect of a term of imprisonment imposed on an offender if it considers that the offender should not be eligible for parole because of one or more of the following:
(a) the offence is serious;
(b) the offender has a significant criminal record;
(c) the offender, when released from custody under a release order made previously, did not comply with the order;
(d) any other reason the court considers relevant.
When a court sentences a person for murder, the earliest parole eligibility date that may be set is after 10 years. For an offence that constitutes aggravated home burglary it is after 15 years. The court may also order that a person sentenced to prison for murder never be released.
When a prisoner becomes eligible for parole, they can apply to the Prisoners Review Board of Western Australia (formerly the Parole Board) to serve the remainder of their sentence in the community. The Board will allow this if it considers the prisoner is not an unacceptable risk to the community.
Mandatory sentencing
In Western Australia, there are particular offences to which a mandatory sentencing regime applies – for example, home burglaries and assaults on custodial officers. Persons found guilty of home burglary offences that involve serious physical or sexual violence must be given a sentence of at least 75% of the maximum term that applies to the offence and where the maximum penalty is life imprisonment, a minimum of 15 years imprisonment has to be imposed for an adult offender and a minimum of three years for a juvenile offender.
Mandatory minimum sentences have been introduced in response to public pressure for the government to be ‘tough on crime’ and a perception that many sentences are too lenient. Mandatory sentencing laws in Western Australia have led to an increase in the incarceration rate, particularly for Indigenous people. Both the Law Council and the Law Society of Western Australia have publicly opposed mandatory sentencing, saying it is ineffective and that such regimes undermine the independence of the judiciary.
Security classification
Western Australia has minimum, medium and maximum security prisons. Where a prisoner is held depends on their security rating, any health issues they have and the types of educational or rehabilitation programs they would benefit from. Where a prisoner’s family and friends are will also be a factor in deciding where to hold them. A prisoner can progress from maximum through to minimum security based on their behaviour and their participation in programs, however other factors will also be taken into account – for example, the type of offending and their history.
Visiting someone in prison
All WA prisons allow social visitors; however, visiting hours differ depending on whether the prisoner is on remand or serving a sentence. Appointments to visit a prisoner need to be made 24 hours in advance.
Visitors must present ID when visiting and should expect to be subjected to a search when entering the prison. This may involve a metal detector, drug particle detector, pat-down search or strip search. Visitors are required to abide by a dress code and a code of conduct.
Visiting a prison during COVID
Public Health Directions have been issued by the WA Chief Health Officers restricting access to correctional facilities during COVID.
All persons aged 12 and older, unless exempt, will be required to be at least partially vaccinated against COVID-19 from 1 December 2021 to be permitted entry. Visitors must be fully vaccinated by 1 January 2022.
Visitors must provide proof (hard copy or digital) that they have been vaccinated. This can be provided in the form of either an Australian Immunisation Register immunisation history statement (for proof of partial vaccination) or a COVID-19 vaccination certificate (for proof of full vaccination). Alternatively, proof of exemption will need to be provided.
If you require legal advice or representation in relation to a criminal matter or any other legal matter, please contact Armstrong Legal.