77Cancellation of parole

77 Cancellation of parole (1) Subject to this section, if a prisoner is released on parole the Board may, at any time before the end of the parole period, by order cancel the parole. S. 77(2) amended by No. 32/2018 s. 124(1). (2) Subject to subsections (3) and (3A), the Board must consider whether to cancel the parole or to vary the terms and conditions of the parole of a prisoner who is charged, while on parole, with an offence that— (a) is punishable by imprisonment; and (b) is alleged to have been committed during the parole period. S. 77(3)(a) amended by No. 31/2017 s. 9(1)(a), substituted by No. 32/2018 s. 124(2). (a) the prisoner referred to in subsection (2)— (i) was released on parole in respect of a sexual offence or a serious violent offence; and (ii) was not released on parole under an order under section 74 made following a referral under section 74AAC(5)(b); and (iii) does not have a terrorism record; and S. 77(3)(b) amended by No. 31/2017 s. 9(1)(b). (b) the offence with which the prisoner was charged, while on parole, was a sexual offence, a violent offence or a terrorism or foreign incursion offence— the Board must determine under subsection (2) to cancel the parole of the prisoner unless the Board is satisfied that circumstances exist that justify the continuation of the parole. S. 77(3A) inserted by No. 32/2018 s. 124(3). (3A) If— (a) the prisoner referred to in subsection (2)— (i) was released on parole under an order under section 74 made following a referral under section 74AAC(5)(b); or (ii) has a terrorism record; and (b) the offence with which the prisoner was charged, while on parole, was a sexual offence, a violent offence or a terrorism or foreign incursion offence— the Board must determine under subsection (2) to cancel the parole of the prisoner unless the Board is satisfied, having regard to the terrorism risk information provided to the Board by the Secretary under section 70(4) in respect of the prisoner (if any), that the applicable threshold under subsection (3H) is met. S. 77(3B) inserted by No. 32/2018 s. 124(3). (3B) Subject to subsection (3C), the Board must consider whether to cancel the parole or to vary the terms and conditions of the parole of a prisoner if the prisoner comes to have a terrorism record while on parole. **Example** A prisoner becomes subject to a terrorism-related order while on parole. S. 77(3C) inserted by No. 32/2018 s. 124(3). (3C) The Board must determine under subsection (3B) to cancel the parole of the prisoner unless the Board is satisfied, having regard to the terrorism risk information provided to the Board by the Secretary under section 70(4) in respect of the prisoner (if any), that the applicable threshold under subsection (3H) is met. S. 77(3D) inserted by No. 32/2018 s. 124(3). (3D) Subject to subsections (3E) and (3F), if under section 70(4) the Secretary provides the Board with new terrorism risk information in respect of a prisoner who is on parole, the Board must consider whether to cancel the parole or to vary the terms and conditions of the parole. S. 77(3E) inserted by No. 32/2018 s. 124(3). (3E) The Board must determine under subsection (3D) to cancel the parole of the prisoner if the Board is satisfied, having regard to the new terrorism risk information, that— (a) in the case of a prisoner who was released on parole under an order under section 74 made following a referral under section 74AAC(5)(b), there has been an increase in the risk in relation to which that referral was made; or Section 74AAC(5) requires that a decision of whether to grant parole be referred to the SVOSO division if there is a risk that the prisoner will commit a terrorism or foreign incursion offence. (b) in the case of a prisoner who had a terrorism record when released on parole, the risk that the prisoner will commit a terrorism or foreign incursion offence has increased since the prisoner was released on parole; or (c) in any other case, there is a risk that the prisoner will commit a terrorism or foreign incursion offence if released on parole. S. 77(3F) inserted by No. 32/2018 s. 124(3). (3F) Despite subsection (3E), the Board is not required to determine under that subsection to cancel the parole of the prisoner if the Board is satisfied, having regard to the terrorism risk information provided to the Board by the Secretary under section 70(4) in respect of the prisoner, that the applicable threshold under subsection (3H) is met. S. 77(3G) inserted by No. 32/2018 s. 124(3). (3G) For the purposes of subsection (3C), (3D), (3E) or (3F), the Board must not have regard to terrorism risk information regarding the prisoner having, or having had, an association with a person or group referred to in section 3B(3)(b)(i), (ii) or (iii) unless the Board is satisfied that the prisoner knew— (b) that the person or group was directly or indirectly engaged in, preparing for, planning, assisting in or fostering the doing of a terrorist act; or S. 77(3H) inserted by No. 32/2018 s. 124(3). (3H) For the purposes of this section, the ***applicable threshold*** for a prisoner on parole is— (a) if the prisoner has been convicted of a terrorism or foreign incursion offence, that there are exceptional circumstances that justify the continuation of the parole; or (b) otherwise, that there are compelling reasons that justify the continuation of the parole. (4) Subject to subsections (5) and (6), the Board must consider whether to cancel the parole or to vary the terms and conditions of the parole of a prisoner who is convicted, while on parole, of an offence that— (a) is punishable by imprisonment; and (b) was committed during the parole period. (5) Subject to subsection (6), the Board must determine under subsection (4) to cancel the parole of the prisoner unless the Board is satisfied that circumstances exist that justify the continuation of the parole. S. 77(6) amended by No. 31/2017 s. 9(2), substituted by No. 32/2018 s. 124(4). (6) The parole of a prisoner is taken to have been cancelled on the conviction of the prisoner for a sexual offence, a violent offence or a terrorism or foreign incursion offence that was committed during the parole period if— (a) the prisoner— (i) did not have a terrorism record immediately before that conviction; and (ii) was released on parole in respect of a sexual offence or a serious violent offence; or (b) the prisoner had a terrorism record immediately before that conviction; or (c) the prisoner was released on parole under an order under section 74 made following a referral under section 74AAC(5)(b). S. 77(6A) inserted by No. 31/2014 s. 8, repealed by No. 41/2015 s. 3(1). S. 77(7) amended by No. 41/2015 s. 3(2). (7) Subject to subsection (7A), if the prisoner is sentenced to another term of imprisonment in respect of one or more offences committed during the parole period, whether in Victoria or elsewhere, the Board may by order cancel the prisoner's parole, even though the parole period may already have elapsed. S. 77(7A) inserted by No. 41/2015 s. 3(3). (7A) If the prisoner is sentenced, whether in Victoria or elsewhere, to another term of imprisonment while on parole, the prisoner's parole is taken to have been cancelled on the sentence being imposed. S. 77(7B) inserted by No. 41/2015 s. 3(3). (7B) Subsection (7A) applies whether the offending in relation to which the prisoner is sentenced occurred before or during the parole period. S. 77(7C) inserted by No. 41/2015 s. 3(3). (7C) For the purposes of this section, a sentence to a term of imprisonment includes a sentence of imprisonment imposed by a court, whether in Victoria or elsewhere, that is partially suspended but does not include a sentence of imprisonment that is wholly suspended. (8) For the purposes of this section, an offence is taken to have been committed during the parole period if— (a) the offence is committed between 2 dates, one of which is within the parole period; or (b) the parole period is between the 2 dates referred to in paragraph (a). S. 77(8A) inserted by No. 64/2017 s. 15(1). (8A) For the purposes of this section, the Board must have regard to the record of the court in relation to the offending, including the judgment and the reasons for sentence. S. 77(9) amended by Nos 76/2016 s. 7, 31/2017 s. 9(3), substituted by No. 64/2017 s. 15(2). (9) In this section, ***conviction*** includes a finding of guilt by a court, whether or not a conviction is recorded. S. 77A inserted by No. 15/2013 s. 3.