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 will be taken into account when their term of imprisonment is set.

Sentences of imprisonment

A court can sentence an offender to imprisonment when they have been found guilty of an offence which carries a maximum penalty of imprisonment. Under Section 35 of the Sentencing Act, a court must provide written reasons when sentencing a person to imprisonment. 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 three 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 less than six years, the offender is eligible to be released on parole after serving one-third of the sentence. If the term imposed is greater than six years, the offender can apply for parole when they have served two years less than two-thirds of the term.

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.

Indefinite imprisonment

When the Supreme Court or District Court of Western Australia sentences a person to imprisonment, it may also make an order that the defendant be imprisoned indefinitely. 

An order for indefinite imprisonment can only be made if the court is satisfied that the offender’s release would be a danger to society because of:

• The exceptional seriousness of the offence;
• The risk they will commit other serious offences;
• Their character, including any mental or physical conditions affecting them and the number of other offences they have committed;
• Any other exceptional circumstances.

A defendant sentenced to indefinite imprisonment may be released by way of a parole order (Section 101).

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 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.

If you require legal advice or representation in relation to a criminal matter or any other legal matter, please contact Armstrong Legal.