What’s The Difference Between Bail and Parole?

The terms ‘bail’ and ‘parole’ are two distinct legal processes that are often commonly confused. Understanding the difference between bail and parole assists to understand the progress of accused and convicted persons through the criminal justice system.

The following outlines both the process of bail and the process of parole in WA, when each process comes into play within the criminal justice system, as well as the relevant legal tests that govern each process. 

What is Bail?

Bail is the legal mechanism which allows a person charged with a criminal offence to be released from custody while awaiting further court proceedings. The granting of bail reflects a foundational principle of the WA criminal justice system that a person is presumed innocent until proven guilty.

In Western Australia, bail is governed by the Bail Act 1982 (WA), which states that a person can be granted bail, either by:

• A police officer (‘police bail’), typically before the first court appearance.
• A Magistrate or Judge (‘court bail’), usually after the person has appeared before the Magistrates Court or a higher court.

Bail must be considered as soon as practicable after a person has been charged with an offence. In relation to police bail, section 6 of the Bail Act states that a police officer who charges or arrests a person must promptly consider whether the accused is eligible for bail or ensure the matter is referred to an authorised officer or court for consideration, even if no bail application is made.  In relation to court bail, a judicial officer must consider bail for an unconvicted accused upon and after their initial court appearance, regardless of whether a bail application is made.

Separate processes exist for murder charges. Under section 7B of the Bail Act, only a Judge of the Supreme Court can grant bail to an adult accused of murder.

The accused must be informed of their right to apply for bail, and once bail has been refused, it can only be reconsidered if new facts or circumstances arise or if the initial application was inadequately presented. If bail is granted, it may be continued by a judicial officer on subsequent appearances. Under section 7C of the Act, only a Judge of the Children’s Court can grant bail to a child accused of murder.

Legal Tests for Bail

The decision to grant or refuse bail by a police or judicial officer is made with reference to several factors outlined under section 6 of the Act, including:

• The seriousness of the offence.
• The likelihood of the person appearing at court if released.
• Whether the person would commit further offences while on bail.
• Whether the person poses a threat to the safety of others.
• The accused’s criminal history and bail compliance record.
• The interests of the accused, including their need to prepare a defence, attend to dependants, or maintain employment.

Generally, there is a presumption in favour of bail, reflecting the principle that detention before conviction should be a last resort. However, as far as serious indictable offences (such as murder) are concerned, there is a presumption against bail, meaning the accused must show why bail should be granted.  

If bail is refused, the person is remanded in custody until their next court date or trial. They may apply again for bail if there is a material change in circumstances.

Under section 6A of the Act, a police officer or judicial officer may order the release of an accused without requiring a bail undertaking if the offence is not serious, unless there are reasonable grounds to believe the accused poses a risk (for example: failing to appear, reoffending or endangering others). This provision allows for release of the accused to appear at the next court date under a court hearing notice.

Finally, under section 15A of the Act both the accused and the prosecutor may appeal a bail decision, including decisions to grant, refuse, vary, revoke, or impose conditions on bail, to the Court of Appeal.

What is Parole?

Unlike bail, which is considered shortly after a person is charged with an offence, parole is the process which applies after a person has been convicted and sentenced to a term of imprisonment. Parole refers to the conditional release of a prisoner into the community to serve part of their sentence under supervision.

Parole is governed by the Sentence Administration Act 2003 (WA), which empowers the Prisoners Review Board to grant parole for prisoners to serve the remaining term of their sentence in the community.

For prison sentences over 12 months, an imposed parole eligibility date is usually stated as part of the sentencing process. For example, a person will be sentenced to a maximum of 6 years imprisonment, with a non-parole period of 4 years, meaning they will become eligible to apply for release on parole after serving 4 years of the sentence.

Stricter rules regarding parole eligibility apply to “prescribed prisoners”. A prescribed prisoner is someone who either is currently serving a sentence for a serious offence, has been released from a sentence for a serious offence in the past five years, or has had an early release order cancelled within two years prior to their current sentence. A list of ‘serious offences’ are outlined under Schedule 2 of the Act and include homicide, assault, sexual offences, stalking and other serious offences under the WA Criminal Code.

Prisoners released on parole must adhere to strict conditions, including:

• Reporting regularly to a community corrections officer.
• Not committing further offences.
• Seeking or maintaining employment.
• Attending programs or treatment.

Additional conditions may include curfews, electronic monitoring, alcohol or drug testing, or restrictions on contact with certain people.

Failure to comply with these conditions can result in a formal warning or the suspension / cancellation of parole, meaning a person returns to prison.

Legal Tests for Parole

When a prisoner becomes eligible for parole, generally their case is reviewed by the Prisoners Review Board, who must consider the following factors outlined under section 5A of the Act:

• Risk to community safety and seriousness of potential reoffending
• Nature and seriousness of the offence
• Sentencing court’s remarks
• Victim impact and submissions
• Prisoner’s behaviour in custody and on previous release
• Participation and performance in rehabilitation programs
• Likelihood of compliance with release conditions
• Any other relevant considerations

For prisoners serving life imprisonment or indefinite sentences, parole decisions are ultimately made by the Governor of Western Australia acting on the advice of the Prison Review Board. This applies to individuals' sentences for serious offences including murder or manslaughter.

Get Legal Advice

If you are anticipating bail or have questions regarding parole eligibility, it is crucial that you get legal advice and representation from an experienced criminal lawyer.

Andrew Williams is an experienced Criminal Lawyer and Barrister who can provide you with expert legal advice in relation to your criminal matter in Western Australia. He has the experience to guide you through bail and parole hearings whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

Author Andrew Williams

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.