[2025] ACTMC 25

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Whether Contravene Family Violence Order is a Family Violence offence - Galambany Circle Sentencing Court - Application of Bugmy principles - Parole time credit provisions - Exceptions to parole time Credit - Offence committed whilst on parole - Cancellation of parole order by Sentence Administration Board prior to sentence - Resetting non-parole period

Crimes (Sentence Administration) Act 2005 (ACT) ss 139, 143, 144, 145, 146, 148(2), 149, 150, 151, 153, 159, 160, 161A, 161B, 161C, 161D, 161E, 161H, 161I

Crimes (Sentencing) Act 2005 (ACT) ss 34B, 70, 74

Family Violence Act 2016 (ACT) s 43(2)

Sentencing (Parole Time Credit) Legislation Amendment Act 2019 (ACT)

DPP v Sullivan (No 3) [2025] ACTSC 134

DPP v Williams [2024] ACTSC 303

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51

Explanatory Memorandum, Sentencing (Parole Time Credit) Legislation Amendment Bill 2019

1. Joe Hewitt, the defendant pleaded guilty to an offence of contravening a family violence Order, contrary to s43(2) of the Family Violence Act 2016.
2. On 19 November 2025, the defendant appeared before Galambany Court and engaged with the Elders, discussing the offending as well as the various steps he has taken towards rehabilitation whilst he was on parole for other family violence offences.
3. Following this discussion and hearing the sentencing submissions from the parties, the Elders and myself met to discuss the appropriate sentence for this offence. The Elders made their recommendation with which I agreed.
4. The reason for not handing down the sentence immediately after these discussions was due to the nature of the legal issues regarding parole that arose in the sentence. The sentence was adjourned to 26 November 2025 however just prior to that date I sought further submissions from the parties regarding the application of s149 of the Crimes (Sentence Administration) Act 2005 ("the Act") given the Sentence Administration Board ("the Board") had already cancelled the parole order prior to the sentence proceedings. The decision hand down was adjourned to 4 December 2025.
5. The solicitor for the defendant provided supplementary written submissions, however the prosecution did not provide any further submissions, despite initially indicating its intention to address the issues raised. This has made it somewhat difficult to properly consider the legal issues as there was no contradictor to the position submitted by the defendant.
6. I apologise to Mr Hewitt for the delay that occurred, however, given the complexity of the issues raised, I considered it necessary to allow adequate time for the prosecution to provide these supplementary submissions. It is disappointing that the prosecution did not take up this opportunity.
7. My remarks on sentence today will be lengthy. I will first deal with the sentence for the offence before me, contravening a family violence order. I will then consider the legal issues regarding the defendant's parole. This needs to be determined in order to decide the end date for the offences for which the defendant had been granted parole, so I can then consider all the offences in total, which will also inform when the sentence for the contravening protection order offence will commence.

Offence of Contravening Family Violence Order ("the FVO")

1. The defendant pleaded guilty on 20 October 2025 at the first mention. This is a plea at the earliest opportunity and the term of imprisonment which I impose will be reduced by 25%.
2. The offence carries a maximum penalty of 500 penalty units and/or 5 years imprisonment, however, the prosecution filed an election for summary jurisdiction, which limits my jurisdiction to 2 years imprisonment.

1. The statement of facts states the defendant was served with the FVO on 25 September 2024 and records the police explained the order to the defendant at that time. I note the FVO (which was tendered at the sentencing proceedings) records the defendant was present at court when the order was made on 29 August 2024. Further the statement of facts states the protected person was Kylie Elliott (a pseudonym) who was the defendant's partner. The FVO however lists Ms Elliott's 7 children as protected persons as well. Those children include the defendant's 5 children, aged 6, 5, 4, 3 and 2 years, as well as Ms Elliott's older children aged 13 and 15 years old.
2. The FVO prohibited the defendant from:
   1. being on the premises where the protected persons lived;
   2. being within 100 metres of the protected persons;
   3. locating or attempting to locate the protected persons;
   4. contacting the protected persons; and
   5. engaging in behaviour that constitutes family violence towards the protected persons.
3. On 3 June 2024, the defendant was convicted of a number of family violence offences and sentenced to a total term of 1 year and 8 months imprisonment, with a non-parole period of 10 months. He was released on parole on 17 March 2025. His parole order, which was before the Court, included the following additional condition:
   1. He must observe and comply with all existing and/or new family violence orders, personal protection orders or any other orders made by a Court that are designed to protect a registered person from you;
4. The parole order contained similar provisions to the FVO prohibiting contact, approaching or being within 100 metres of the victim (Ms Elliott) (or the immediate family members of the victim) of the offences. This included a prohibition of being within 100 metres of any residence, place of employment or education facility where the victim (or family member) may be. The Order further stated

for the avoidance of doubt Mr [Hewitt] can have access to his 5 children in circumstances approved by CYF. He can not have contact with the 5 children except in those circumstances.

5. At about 1.02pm on Saturday 18 October 2025, Ms Elliott's 13-year-old son, rang police to report that the defendant had arrived at the house and he was not supposed to be there due to orders.
6. Police attended and spoke to the young person, observing he was distressed. He told police his abusive stepfather was inside the house. Ms Elliott then spoke to police at the front door, telling them that the defendant was not in the house. The young person said

7. Police entered the house and found the defendant hiding under a blanket in a bedroom. The young person was placed into emergency care with Child Youth Families (CYF).

1. During the sentencing proceedings, the defendant told the Elders that he had permission from Ms Elliott to be at the house. He told the author of the Court Duty Report that Ms Elliott had contacted him requesting his help to look after the children as she was sick. This is to some extent supported by the child's comment about his mother letting the defendant into the house. I do not consider this mitigates the offending. I refer to Her Honour Acting Justice Christensen's comments in DPP v Williams [2024] ACTSC 303 where Her Honour referred to s34B of the Crimes (Sentencing) Act 2005 (ACT) which provides:

(1) In deciding how an offender should be sentenced for a family violence offence, a court must consider the nature of family violence and the context of the offending, including the following:

(a) the matters mentioned in the preamble to the Family Violence Act 2016

1. Her Honour referred to 2(c) of the Preamble to the Family Violence Act 2016 which states

(b) family violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years

It cannot properly follow from a consideration of the exploitation of the power imbalances or patterns of abuse to allow a reduction in penalty for an offender who's in the home of a protected person to a family violence order just because they are not there by force.

In a circumstance of family violence offending, consistent with legislated considerations for such offending per s 34B of the Sentencing Act any apparent acquiescence or permission by a victim who is a protected person in a family violence order is unlikely to be mitigatory on sentence. A family violence order is an order made by the court. The protected person's engagement with that order is beside the point as they are not the person the subject of the court's order. It is for the respondent to a family violence order to comply with it. A failure to do so, irrespective of the reasoning for a contravention, warrants condign punishment, giving emphasis to deterrence, denunciation, and accountability in the sentencing exercise.

3. In any event, there was no such acquiescence by the 13-year-old son who was a protected person on the Order. Although there was no Victim Impact Statement from the child, I can reasonably infer that the defendant's attendance at the house, being within 100 metres of the child and his mother, and being in contact with them, demonstrated to this child that the defendant did not consider himself bound by the FVO. The child no doubt felt unprotected by the FVO and by his mother. The offending is aggravated by the presence of this child.

1. As already stated, the defendant was on parole for family violence offences committed against Ms Elliott. These offences occurred on 6 July 2023 (2 charges of aggravated common assault and aggravated assault occasioning actual bodily harm) and on 2 February 2024 (a charge of aggravated assault occasioning actual bodily harm). Although not aggravating the present offence, the fact that it was committed whilst the defendant was on conditional liberty is an aggravating factor on sentence.
2. The defendant has convictions for common assault in 2019, 2018 and 2009. In 2013 he was sentenced to a term of imprisonment for a stalking offence and domestic violence damaging property offence in NSW. In 2017 he was sentenced to a term of imprisonment for 2 offences of domestic violence damaging property. He has offences of dishonesty and drugs, for which he has received terms of imprisonment.
3. The defendant has a significant record for driving offences. Of note, these include numerous driving whilst disqualified convictions which have resulted in terms of imprisonment. This type of offence, along with 3 convictions for failing to appear are similar to the offence of contravening a FVO in that they involve the defendant disobeying a Court order.
4. I further note from the history that the defendant has often been back before a sentencing court in relation to breaching community-based sentences which have on occasions resulted in terms of full-time imprisonment being served.
5. This is consistent with the information in the Court Duty Report that the defendant has a history of noncompliance with good behaviour orders, although the report author did note that the defendant's performance on his parole order had been satisfactory up to the committal of this offence.
6. Given this criminal history, specific deterrence will play a significant role in the sentence that I impose. Looking just at the criminal history, I would consider the defendant's prospects for rehabilitation to be poor. However, as I will discuss further, the defendant has made some positive steps towards his rehabilitation whilst on parole.

1. The defendant is a Yuin man, born in Moruya and now aged 38 years old. His childhood was marred by his exposure to family violence perpetrated by his stepfather to his mother, as well as being exposed to his father's alcoholism and drug use. This background enlivens the Bugmy principles, and is particularly relevant given the defendant's own history of family violence offending. It moderates the defendant's moral culpability making the purpose of general deterrence less important than it would ordinarily have when sentencing for family violence offending.
2. The defendant has 5 children with Ms Elliott, who is described in the report as his ex-partner. He is working towards having more contact with his children in the future and has been engaging in programs such as Caring Dads with Yeddung Mura. He experienced tragedy with the loss of a daughter when he was younger. He has completed 2 sessions of the Room4change program through DVCS and intends to complete this program upon his release.
3. Through his positive engagement with Yeddung Mura he secured accommodation and hopes to return to this housing upon his release.
4. The defendant understood that attending the house on 18 October was prohibited but since it was a Saturday he said he could not contact CYF to get assistance for his partner to look after the children whilst she was unwell.
5. The letter from the defendant's caseworker at Yeddung Mura described the defendant's positive engagement with their programs, including alcohol and drug programmes. He has now been sober for over 2 years.
6. The Court Duty Report recommended a further period of supervision and a condition requiring him to complete the Room4change program. He was found suitable for community service work. He was not assessed for suitability for an Intensive Correction Order.

1. As referred to above, general deterrence plays less of a role in this sentence. However, the defendant's exposure to family violence as a child and his own family violence offending increases the role of rehabilitation, in order to reduce this criminogenic factor. The sentence must recognise the harm done to the protected person, specifically the 13-year-old child. It must denounce the conduct of breaching a court order designed to protect women and children from family violence. His repeated offending, particularly offending whilst subject to a parole order must be reflected by emphasising the role of punishment, accountability and specific deterrence. A term of imprisonment is in my view the only available sentencing option that adequately addresses these purposes and recognises the seriousness of the offending.
2. I do not consider a suspended sentence would achieve this purpose, particularly where the offence was committed whilst on parole. Not only was it a blatant breach of the FVO conditions, but it also was a direct breach of the parole conditions that were no doubt in place to ensure the safety of his ex-partner and the children.
3. Before working out the dates of the term of imprisonment which is to be served by full time custody, I must consider the legal issues relating to the parole order offending, as that will have a bearing on the length of the term of imprisonment I impose and the date the term of imprisonment commences.

1. This sentence raises 2 significant legal issues relating to the fact that this offence was committed whilst the defendant was on parole. The sentence imposed by Magistrate Temby will be referred to as the "parole sentence" and the offending will be referred to as the "parole offence" consistent with the definitions in s161A and s161B of the Act. The 2 issues are:

(a) What role does the sentencing court have in relation to the parole sentence, specifically, the consideration of parole time credit for that sentence, when, at the time of the conviction by the Court, the parole order had been cancelled and has now ended?

(b) Secondly, if the Court is to make a determination about parole time credit is the offence of contravening a family violence order a "family violence offence" for the purposes of s161D of the Act?

1. If I come to the conclusion that this court does not have any role to play in considering the parole time credit applicable to the parole sentence, I do not need to consider the second issue. If, however, I find I must determine parole time credit for the parole offence, I need to consider whether the exceptions in s161D of the Act apply.

Procedural history for the defendant's parole sentence

1. On 3 June 2024, the defendant was convicted of a number of family violence offences and sentenced to a total term of 1 year and 8 months imprisonment, commencing 28 March 2024 and ending 27 November 2025, with a non-parole period of 10 months ending 27 January 2025. Pursuant to the parole order dated 13 March 2025, the defendant was released from custody on 17 March 2025 and remained under sentence and subject to the parole order until 27 November 2025. This offence was committed on 18 October 2025, at a time whilst his parole order was still in force.
2. It is a core condition of an offender's parole that they must not commit an offence that is punishable by imprisonment (s137). The defendant upon being convicted or found guilty of an offence committed whilst subject to a parole order has therefore breached his parole.
3. The Act creates a scheme where breaches of parole are dealt with by the Board. The Board can deal with breaches reported to it by a corrections officer (s143), and breaches brought to it by the police, following the arrest of the offender (with or without a warrant) for breaching their parole obligations (s144 and s145). The Board may then conduct an inquiry to decide whether the offender has in fact breached any of the parole obligations. (s146).
4. If the Board decides the offender has breached a parole obligation, it can do a number of things, including cancelling the parole order (s148(2)). If the Board decides to cancel the parole order, it must provide written notice of its decision and inform the offender of the date upon which the cancellation takes effect (s159). In those circumstances, the Board cannot set an earlier date for the cancellation.
5. The Act also allows the Board to cancel the parole order where there has been further offending. Those circumstances are:

(a) Where the offender has committed and been convicted or found guilty of a non ACT offence whilst a parole order was in force (s150);

(b) Where the parole order has ended (other than by cancellation) and after the order ends, the Board determines that the offender has been convicted or found guilty of an offence against a territory law committed while the offender was on parole (s151(1)(a));

(c) Where the parole order has ended (including by cancellation) and after the order ends, the Board determines that the offender has been convicted or found guilty of a non-ACT offence committed while the offender was on parole (s151(1)(b)).

1. In each of these circumstances, there is a finding that the offender has breached a core obligation of their parole, that is, not to commit an offence punishable by imprisonment whilst on parole, but there was no opportunity for a Court to consider whether this had any impact on the offenders parole order, such as whether it is then cancelled and to what extent should the offender be given parole time credit.
2. In the first scenario, the sentencing court is a non-ACT court, which has no authority to make any orders in relation to the offender's ACT parole or the determination of his/her parole time credit.
3. In the next scenario, although it relates to the commission of a further ACT offence whilst on parole, it has occurred where the parole order has ended but not by a cancellation. Where the parole order has ended at a time when the ACT Court is sentencing for a further offence, there is no existing sentence (as defined in s70(1) of the Crimes (Sentencing) Act) and therefore there is no need to consider the parole sentence or reset the non-parole period.
4. In the last scenario, the Board can cancel the parole order after it has ended, (even if it has already been cancelled by the Board for a different breach), upon determining that the offender committed a non-ACT offence.
5. In those last 2 scenarios, the Act contemplates the Board cancelling the parole order after the order has ended. The Act specifically provides that the Board may exercise a function under Division 7.4.2 ("Breach of parole obligations") "even though the order for parole has ended" (s152).
6. However, in a situation where the parole order has ended by cancellation, s151(1)(a) does not allow the Board to revisit the parole order or deal with the parole time credit issue for a territory offence. This does not mean that it is ignored. In my view, the legislation has not given this function to the Board in that circumstance, because it remains a function of the sentencing court for the second offence.
7. Using the example in this matter, the offending occurred whilst the parole order was in force, but by the time the matter came before the sentencing court on 19 November, the Board had in fact cancelled the parole order on 13 November 2025. The Board also ordered that the defendant's parole time credit ended on 12 November 2025, the day before the cancellation. This order records that the Board conducted a hearing under s153 of the Act into the management of the defendant's parole and the defendant's parole order was cancelled. It is significant that this was a hearing pursuant to s153, which is not an inquiry regarding any breaches of the parole order. There is no information as to why this hearing was held, but I note that s153(4) allows the Board to conduct the inquiry on its own initiative or on application by the offender or the Director General. No reasons have been provided to this Court as to why the Board cancelled the parole order.
8. The result of the Board cancelling the order, means that the s151(1)(a) does not allow the Board, upon learning of a Territory offence committed whilst the parole order was in force, to consider a parole order that has ended. The parole order in this matter ended on 27 November 2025.

Does a Court cancel a parole order upon conviction?

1. Part 7.4.2 of the Act entitled "Breach of parole obligations" makes no reference to a Court cancelling a parole order. I presume the legislation is framed this way to avoid any infringement of the principle established by the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51. It is often said that s149 of the Act requires the Court to cancel the parole order, but that provision makes no such requirement. Section 149 provides:
   1. Automatic cancellation of parole order for ACT offence

(1) This section applies if, while an offender's parole order is in force, the offender -

(a) commits an offence against a territory law that is punishable by imprisonment; and

(b) is convicted or found guilty by a court of the offence

(2) The parole order is automatically cancelled when the offender is convicted or found guilty of the offence.

Note The court must make an order under s 161 (Cancellation of parole - recommittal to full-time detention)

1. The Court does not make an inquiry into whether there has been a breach of the offender's parole obligations. A conviction for the offence committed whilst subject to parole is evidence of the breach of a core parole obligation. The Court does not order that the parole order is cancelled, because it is an automatic cancellation upon the conviction. It follows then that the Court must be the recommitting authority pursuant to s161 of the Act, because prior to the conviction, the parole order was in force.
2. However, the parole order is only automatically cancelled, where the 2 events, namely the offence was committed and the offender was convicted or found guilty, occurred whilst the parole order was in force. Section 149 is directed to the situation where the parole order is still in force at the time of conviction.
3. Section 160(2) provides

(1) If the parole order is in force immediately before the cancellation, the cancellation ends the parole order.

1. Where, at the time of conviction, an offender's parole order has already been cancelled, there is no automatic cancellation of an order, because one does not exist. Section 161 (relating to the Court being the recommitting authority) only applies where an offender's parole order is cancelled under Part 7.4. Where the parole order had already been cancelled prior to the conviction or finding of guilt by the court, the court does not become the recommitting authority. This is consistent with the parole order having already ended by way of cancellation and the offender ordered to serve the remaining period of the sentence of imprisonment by full time detention and otherwise in accordance with the sentence (s160(5)).
2. As is the case in this matter, s149 does not apply and I am not required to recommit the defendant to serve any remainder of the parole sentence. This has already occurred when the Board cancelled the parole order. So if the Board cannot deal with the parole time credit issue where an order has been cancelled for a Territory offence, who can? I do not think the legislation intended that this issue be completely ignored such as in the circumstances that exist in this case.

Does the sentencing court for the second offence have to consider parole time credit for the parole sentence?

1. I consider the answer to this question is found in s161A. This section provides:

(a) while the offender is under a parole order for a sentence of imprisonment for an offence (the parole offence), the offender breaches 1 or more parole obligations; and

(b) the offender's parole order is cancelled.

Note A parole order may be cancelled after it has ended (see s 151).

1. Section 161A does not refer to the circumstances of when or how the parole order was cancelled. It just refers to it being cancelled and the offender has breached a parole condition during the parole order. If those two circumstances exist, then Part 7.5A (Parole Time Credit) must be complied with. This Part does in fact impose a mandatory obligation on a court to consider parole time credit when sentencing a person for a certain category of offence committed whilst on parole.
2. Section 161C provides the general rule in relation to parole time credit. It states that an offender's parole time credit is taken to be time served against the offender's parole sentence. This general rule however is subject to s161D and s161E. Section 161D provides an exception to the general rule. It provides:

(1) This section applies if an offender breaches a parole obligation by committing an offence (the second offence) and -

(a) the second offence was committed within 3 months after the offender's parole release date; or

(b) the offender's parole offence is a serious offence or a serious non-ACT offence, and the offender's second offence is a serious offence; or

(c) the offender's parole offence is a family violence offence or a non-ACT family violence offence, and the offender's second offence is a family violence offence.

(2) The sentencing court for the second offence must make an order about whether the offender's parole time credit is to be taken as time served against their parole sentence.

1. This requirement on the sentencing court for the second offence is not limited to only when the sentencing court conviction automatically cancels the parole order, pursuant to s149. It makes no reference whatsoever to s149. Under s161D, the court must decide whether the exception to the general rule applies, and if so, whether there are any special circumstances to warrant allowing some or all of the parole time credit to be time served against the parole sentence.
2. The date of the end of the parole time credit period, if allowed, is determined upon the court finding the offence was committed on a certain date or period. This is similar to the power given by s161E to the Board upon the finding that a non-ACT offence has been committed whilst on parole. This allows the Board to determine the date of the offence, which will then dictate the end date for the parole time credit, if allowed. There is no power in the Act for the Board to make this determination for an ACT offence, (other than when it is cancelling a parole order pursuant to s151(1)(a)). I am of the view that this power is not given to the Board because the legislation has allocated that task to the sentencing court for the second offence.
3. The Act clearly contemplates the making of multiple parole orders that may appear inconsistent with each other. To address that issue, s161I provides:

161I Parole time credit - shortest period to apply

(1) Not more than 1 parole time credit per parole order is to be taken as time served against an offender's parole sentence.

(2) However, if an order has been made under this part that parole time credit is not to be taken as time served against an offender's parole sentence, no parole time credit for the parole order is to apply to the offender's parole sentence.

(3) The parole time credit to be taken as time served against an offender's parole sentence is the shortest parole time credit that applies under this part.

(4) To remove any doubt, subsection (3) applies despite -

(a) a longer parole time credit having been previously taken as time served against an offender's sentence for the parole order; and

(b) any other document stating a different parole time credit for the offender.

Example Parole time credit was taken to be time served against an offender's parole sentence, ending on the day the order was cancelled and the offender was recommitted to full‑time detention under s 161. Later, the offender is convicted of an offence committed while on parole. The offender's parole order is taken, under s 151, to have been cancelled on the day the offence was committed, and the offender is recommitted to full-time detention by the recommitting authority. On the second recommittal, the parole time credit to be taken as time served against the offender's sentence is the later parole time credit, being the shortest parole time credit that applies under this part.

1. The clear intention of s161I(4) is to deal with the situation where a later parole time credit allocation is made which may be shorter than the one made by the Board or recorded in the Warrant of Imprisonment following the Board's decision.
2. The Act clearly contemplates the making of multiple parole orders and the fact that the Board cancelled the order does not prevent the Court from considering the appropriate parole time credit to determine the end date of that sentence and to then consider the concurrency or cumulation issue for the sentence it then gives for the second offence.
3. If the Court decides that the exception applies and that no special circumstances warrant deviation from that rule, the court cannot give parole time credit. As it will then be the shorter parole time period, it will apply instead of the Board granting the full time as parole time credit as it has done in this matter.

1. Despite what might appear to be an issue that would arise in a number of sentencing matters, the only decision that appears to have considered this issue is DPP v Sullivan (No 3) [2025] ACTSC 134. In that decision the offender committed an offence within 3 months of being released on a parole order. At the time of the sentence before Her Honour Justice Taylor, the Board had already cancelled the offender's parole order. The prosecution submitted that because the order had already been cancelled, s161D was not enlivened as there was no longer any parole order for the court to deal with upon conviction. This is the same position the defence have submitted in this case. Her Honour considered the prosecution's interpretation was available at [96] yet expressed some doubt and observed that an alternative construction was also available, that is, that s161D still required the sentencing court to make a determination as to the issue of parole time credit [116].
2. Defence submitted that this court was bound by the approach taken by Justice Taylor and accordingly it was not open to the court to apply Pt 7.5A at all. The prosecution unhelpfully made no submission regarding this issue.
3. A decision of the Supreme Court is binding upon me, however, I do not consider that Justice Taylor came to any conclusion about the issue. Given there was no contradictor to the approach suggested by the prosecution, Her Honour did not make any final determination as to the applicability of s161D. She stated:

98. Accordingly, the operation of the parole provisions in ch 7 of the Crimes (Sentence Administration) Act was not argued. > > 99. The result for this offender, as both parties acknowledged, is largely academic. He had additional parole time credit recognised by the SAB which amounted to days, that would not have been recognised had I recalculated parole time credit applying s161D upon conviction.... > > 100. Whilst the consequences of this position for the offender are positive, but minor, it is appropriate for me to note that the effect of the approach I will adopt at the urging of the prosecution has potential to take on much greater significance in other circumstances, particularly noting the exceptions to the general rule contained in s161D include offenders on parole for family violence offences who commit another family violence offence at any time that a parole order is in force.

4. I consider that some of Her Honour's comments are in support of the interpretation I have taken. She states:

103. The provision does not require the court to do anything in relation to a "parole order". Indeed, the text of the provision does not include reference to a "parole order". The provision is clearly directed to the consequences for an offender who commits an offence while subject to a parole order. That circumstance does not alter if, by the time an offender comes to be sentenced for the offence, the parole order has been cancelled. > > 104. Secondly, s161I clearly contemplates the calculation of parole time credit on more than one occasion because it dictates that the shortest parole time credit period is to apply. The section is not limited to decisions made by the SAB.

113. Finally, I observe that the effect of the prosecution's position is that an offender can avoid the consequence of that s161D attempts to capture. Offenders who have their parole order cancelled by the SAB because they are found in breach of a parole obligation and who are later convicted of an offence committed in the ACT while the parole order was in force in circumstances captured by s161D, will have the general parole time credit rule applied to them by the SAB, calculated by reference to s161G. > > 114. Offenders in that category, as with this offender, could potentially have a period of parole time credit taken to be served against their parole sentence more generous than if s161D was applied by the Court at the time of the conviction for the offence committed while the parole order was in force. > > 115. An offender on parole who might come within any one of the exceptions contained in s161D for 'certain ACT offences' could avoid the consequences of the exception by prolonging the finalisation of the offence committed while on parole. The SAB is only able to deal with the category of exceptions created by s161D in relation to parole time credit for 'certain non-ACT offences' pursuant to s161E. So even allowing for what the prosecution described as the SAB having "retrospective power" to cancel parole and/or review an offender's parole order after it has ended (s152), if the offence breaching a parole obligation was an ACT offence, the SAB could not apply the exceptions in s161D for the purposes of calculating parole time credit; retrospectively or otherwise. > > 116. In short, there are textual and purposive indications which point against the construction advanced by the prosecution. However, where the outcome of the construction was favourable to the offender, and where no submission was advanced to contradict the construction of the provisions urged by the prosecution, I have determined to approach this matter as the prosecution submitted I should.

6. Although Justice Taylor eventually accepted the approach submitted by the prosecution, I consider Her Honour did not make any binding decision on this issue. Her obiter comments are in my view persuasive for the alternative interpretation that she considered was available by the provision.

1. I consider the interpretation of the parole time credit provisions for which I have found applies to this Court, particularly s161D(2), reflects the ordinary meaning of the words used in the Act. The parole time provisions (part 7.5A) were inserted pursuant to the Sentencing (Parole Time Credit) Legislation Amendment Act 2019. Although an Explanatory Memorandum cannot displace the clear meaning of the legislation, it is apparent from that document that the context and legislative purpose of the parole time credit provisions is consistent with and confirms the ordinary meaning of the words in s161D.
2. The following extracts from the Explanatory Memorandum support this interpretation. At page 10:

In cases of reoffending while on parole, the offender is subject to the maximum time possible (i.e. the date of arrest or cancellation of parole) until they are found guilty or convicted of further offending at which point the amount of parole time credit to be applied to the offender's sentence is finalised.

With regard to new offences, parole time credit applies until the date the offence was committed, however, this is only determined after a conviction or finding of guilt is recorded.

161A Application - pt 7.5A > > This section sets out the broad application of parole time credit for all offenders. > > Section 161A states that parole time credit only applies to an offender who has their parole cancelled. Offenders who complete their sentence (including any time spent on parole) have no need to access parole time credit to calculate the length of time remaining on their sentence. Parole time credit is not primarily a sentencing matter. It is predominately a way of calculating the length of sentence remaining to be served after parole has been cancelled.

Parole is a privilege and if that privilege has been abused by the offender's failure to abide by their obligations through the commission of a further serious offence, the person deserves to be returned to detention to serve the full sentence by full-time imprisonment. The decision about whether the offender should be afforded any of the benefit of parole time credit is left with the court if the court is satisfied special circumstances apply to the offender.

In R v Smith [2015] 1 Ad R 323 Morrison JA (with whom Muir JA and Daubney J agreed) stated at [29] that where the parolee commits another offence,

'the only time served...is that which was served prior to committing the offence which subsequently, by way of sentence, results in the automatic cancellation of the parole order',

which he described at [30] as

'a coherent system where a prisoner commits an offence during the period of a parole order'.

161I Parole time credit - shortest period to apply > > This section acts to ensure that where multiple breaches of parole occur or new offences have been committed all or several of which led to the cancellation of the offender's parole, only one period of credit is counted towards the offender's parole sentence.

Is the offence of contravening a family violence order a 'family violence offence'?

1. Having concluded that I must comply with s161D(2), I must firstly determine whether this offence is within the categories of offences in s161D to which the general rule relating to parole time credit does not apply. I will therefore at this stage move to consideration of the second legal issue, that is, whether the offence of contravening a family violence order is a family violence offence.
2. As referred to above, there is an exception to the general rule if the offender's parole offence is a family violence offence and the offender's second offence is a family violence offence. The term "family violence offence" is defined in s161B by referring to the dictionary of the Family Violence Act 2016. That Act provides

an offence is a family violence offence if the conduct making up the offence is family violence.

3. The term "family violence" is then defined at s8, which provides (examples have been omitted):
   1. Meaning of family violence

(a) any of the following behaviour by a person in relation to a family member of the person:

(i) physical violence or abuse;

(ii) sexual violence or abuse;

(iii) emotional or psychological abuse;

(iv) economic abuse;

(v) threatening behaviour;

(vi) coercion or any other behaviour that -

(B) causes the family member to feel fear for the safety or wellbeing of the family member or another person; or

(b) behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour.

(2) Without limiting subsection (1), family violence by a person in relation to a family member of the person includes the following:

(a) sexually coercive behaviour;

(b) damaging property;

(c) harming an animal;

(d) stalking;

(e) deprivation of liberty;

(f) harmful use of, or interference with, technology.

economic abuse, of a family member, means behaviour by a person that is coercive, deceptive or that unreasonably controls the family member without the family member's consent including by the person's exploitation of power imbalances between the person and the family member -

(a) in a way that takes away the financial independence or control the family member would have but for the behaviour; or

(b) if the family member is wholly or predominantly dependent on the person for financial support to meet the living expenses of the family member or the family member's child - by withholding the financial support.

emotional or psychological abuse, of a family member, means behaviour by a person that torments, intimidates, harasses or is offensive to the family member including by the person's exploitation of power imbalances between the person and the family member.

1. The prosecution submits that the offence of contravening a Family Violence Order is an offence of family violence, particularly in this case where the child was distressed by the presence of the defendant, who he described as his abusive stepfather, and was not allowed to be at the house. The prosecution submits that the defendant's conduct constituted emotional or psychological abuse of the child, particularly by exploiting the power imbalance between the defendant and the child by attending the child's residence in a way that the child was powerless to prevent. This conduct caused the child sufficient fear to cause him to seek the assistance of the police.
2. The defence submit that the offence of contravening a FVO is directed to the offender's conduct of not complying with a Court order, rather than it being by its very nature a "family violence offence". There would be times when the breach could be constituted by physical violence and would usually then be separately charged with personal violence offences. There was no suggestion of any personal violence offence in the defendant's conduct. His breach is his attendance at the residence and being within 100 metres of the protected persons.
3. There are of course many ways a person can breach a family violence order. The breach does not require any act of violence. This is referred to in the Explanatory Memorandum for the Bill introducing the parole time credit amendments. At page 17 it states

The definition is intentionally broad to ensure that all types of domestic, family and sexual violence are covered. There are many ways that people can perpetrate violence against a family member and people who suffer this violence should be protected under the law

4. The gravamen of the offending is found in the defendant's non compliance with an order that is designed to protect a person from the offender. In my view it matters not what conduct constitutes the breach, because the breach of itself has an impact on the protected person, that is likely to cause them fear and jeopardise their safety or feeling of safety.
5. It is useful to again refer to the Preamble to the Family Violence Act, which refers to family violence extending beyond physical violence. It also refers to

children exposed to family violence are particularly vulnerable and the exposure may have a serious impact on their current and future physical, psychological and emotional wellbeing.

6. I accept the prosecution's submissions and I find the offence of contravening a family violence order is a "family violence offence" for the purposes of s161D of the Act.

Whether Parole time credit should be given to the defendant

1. Having accepted this, the general rule does not apply and the defendant does not receive parole time credit. I must now consider s161D(3) which provides:

(a) must not take parole time credit as time served against the parole sentence unless the court is satisfied there are special circumstances to warrant it; but

(b) if satisfied there are special circumstances - may take the parole time credit, either wholly or partly, to be time served against the parole sentence.

1. The onus is on the defendant to persuade the Court there are special circumstances that warrant the granting of parole time credit. The defendant has submitted the following circumstances should be considered:

(a) The Board has already cancelled the parole order and made a decision about parole time credit. Any subsequent decision would result in inconsistency and unfairness to the defendant. I do not accept this is a special circumstance. It is clearly the situation envisaged by the legislation allowing a different parole time credit decision to be made.

(b) The nature of the contravention, being of low objective seriousness. As previously referred to I do not accept that the defendant's conduct is of low objective seriousness, despite the absence of any violent conduct.

(c) The substantial rehabilitative steps the defendant has already undertaken. A letter from the defendant's caseworker at Yeddung Mura was tendered to the court. It described that whilst on parole the defendant was actively involved and attended weekly sessions including Smart Recovery, Alcoholics Anonymous, Narcotics Anonymous, Anger management programs, Caring dads program and Room4 change (through DVCS).

1. Consistent with the purpose of the parole time credit scheme, I accept the defendant's significant steps towards rehabilitation during his parole time should be considered as a special circumstance. Similarly, the fact that the defendant's offending occurred in the last month of his parole order and there were no other breaches of his parole conditions, reflects the positive steps the defendant has taken. This should be recognised and accordingly I will allow some parole time credit.

1. If I was to allow credit for the full period, s161H provides that the parole time credit commences on the parole release date and ends the day before the day the second offence was committed. I also must consider s139 which provides that the time the offender spent after being arrested for the new offence, and bail refused, is not time to be taken as time served against the parole sentence. It is however time that can be taken as time served for the new offending
2. I therefore make the following calculations:

(a) The full period of time available for parole time credit, that is, from the date of the defendant's release, being 17 March 2025, to the day before the offence was committed, which is 17 October 2025, is a period of 7 months and 1 day.

(b) I consider the appropriate credit is 5 months, commencing 17 March 2025 and ending 16 August 2025.

(c) As my order relating to parole time credit is the shorter period to that imposed by the Board, the defendant is required to serve further time in custody for the parole sentence. His total term of imprisonment imposed by Magistrate Temby was 20 months, commencing 28 March 2024 and ending 27 November 2025. The defendant has served the following dates in full time custody referable to the parole sentence:

(i) 28 March 2024 - 17 March 2025, being the date of his release on parole. This is a period of 355 days, or 11 months and 18 days; and

(ii) 17 March 2025 - 16 August 2025 being the time allowed for parole time credit. This is a period of 5 months.

(d) I therefore calculate the time the defendant has already served for the parole offence is 16 months and 18 days. He therefore is required to serve the remainder of the 20 months term of imprisonment, which is 3 months and 12 days. I will date the period to be served for the parole offence from today's date, being the date of the conviction for the new offence. That term of imprisonment will end on 14 March 2026. The time spent in custody since the date of arrest until today, being a period of 48 days, will be taken into account for the sentence for the new offence.

Sentence for Contravening Family Violence Order

1. I turn now to the sentence I impose for the offence of contravening a family violence order. I convict the defendant for that offence. My starting point for this offence was 12 months imprisonment. I reduced that to 9 months to reflect the defendant's early plea of guilty. I then further reduced that by 48 days (or 1 months and 17 days) which reflects the time the defendant spent in custody from the date of his arrest, being 18 October 2025 till today. That gives a total term of imprisonment to be 7 months and 13 days. This sentence is to be wholly consecutive on the existing sentence. Therefore, the term of imprisonment will commence on 15 March 2026 and end on 27 October 2026.

Total term of imprisonment and new non parole period

1. The total term of imprisonment for both the parole offence and the primary offence is now a term of 27 months and 13 days. Section 74 of the Crimes (Sentencing) Act allows a court (whether on appeal or otherwise) to amend the starting date of a sentence of imprisonment imposed on the offender by the court or another court, however the term of the sentence must not be amended. There is a period of time where the defendant was on parole for which I have not given him credit. That period of time was from 17 August 2025 to the date of his conviction today, being a period of 110 days, or 3 months and 18 days. I need to amend the start date of the total term of imprisonment to reflect this time that was not spent in custody. Accordingly, the total term of imprisonment of 27 months and 13 days commenced on 15 July 2024 and ends 27 October 2026. I set a non-parole period of 14 months commencing 15 July 2024 and ending on 14 September 2025. As a result the defendant is already eligible for parole.

(1) The defendant is convicted of the offence of Contravening a Family Violence Order.

(2) This offence is a family violence offence and was committed whilst the defendant was on parole for family violence offences pursuant to a sentence imposed by Magistrate Temby on 3 June 2024. Pursuant to s161D(2) of the Crimes (Sentence Administration) Act 2005, I order that 5 months of parole time credit is to be taken as time served against the defendant's parole sentence. This commenced on 17 March 2025 and ended 16 August 2025.

(3) The defendant is required to serve 3 months and 12 days imprisonment for the parole sentence. This term of imprisonment commences 4 December 2025 and ends on 14 March 2026.

(4) For the offence of contravening a family violence order, the defendant is sentenced to 7 months and 13 days imprisonment commencing 15 March 2026 and ending 27 October 2026.

(5) Pursuant to s74 of the Crimes (Sentencing) Act 2005, I amend the starting date for the parole sentence to commence 15 July 2024 and ending on 14 March 2026, being a term of imprisonment of 1 year and 8 months.

(6) The total term of imprisonment is 27 months and 13 days imprisonment commencing 15 July 2024 and ending on 27 October 2026.

(7) I reset the non-parole period to 14 months commencing 15 July 2024 and ending on 14 September 2025.

I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Magistrate Campbell.