On Thursday, July 18, 2019, Kenyans woke up to the news that one-time star KTN news anchor, Esther Arunga, was handed a 10-month jail term by a Queensland court, but was immediately freed on parole.
Many Kenyans were surprised by the sentencing since earlier reports had indicated that she was staring at a long prison sentence, for being an accessory to the murder of her son Sinclair Timberlake.
It was notable that the court considered Arunga’s mindset when sentencing her.
Judge Martin Burns observed that Arunga’s beliefs had led to her tribulations as she tried to bring up a family in a foreign land, and worse still, losing a son in the process.
According to Australia’s gotocourt.com.au, parole in Western Australia is granted to prisoners who comply with prison rules and show a commitment to maintaining a positive life and to becoming a valuable member of the community.
“If parole is granted, a parole order will set out the date of release and the specific conditions that have to be met while on parole. A parolee is usually supervised and must comply with certain conditions to protect the community and to allow the Board to monitor the parolee’s circumstances and behaviour,” the website reads.
So what exactly does parole mean? This article will shed light on a wide range of sentences available to a judge when sentencing someone found guilty of a criminal offence.
What is parole?
Parole is conditional freedom for prisoners who seem capable of reintegrating into society.
The prisoner (called a "parolee") gets out from behind bars but has to live up to a series of responsibilities.
Parole is designed as an opportunity for a prisoner to transition back into society. The restrictions on parolees are supposed to encourage good behaviour after incarceration.
A parolee who doesn't follow the rules risks going back into custody.
Under a typical parole system, the parolee is assigned a parole officer and must meet with that officer periodically.
The parole officer may also make unannounced visits to the parolee’s home to check that the parolee is truly abiding by the relevant conditions.
Parole helps the government try to cut down on the high costs of maintaining large prison populations while keeping the population at large safe.
Parole also reduces prison overcrowding, granting offenders who are considered unlikely to harm others the benefit of supervised life in society.
Parole Conditions
Once out on parole, a parolee enjoys the privilege of relative freedom in return for abiding by certain conditions. Some common parole conditions are that the parolee:
Maintains employment and a residence.
Avoids criminal activity and contact with any victims.
Refrains from drug and sometimes alcohol use.
Attends drug or alcohol recovery meetings.
Doesn't leave a specified geographic area without permission from the parole officer.
Parole Violation
To violate parole is to fail to live up to its conditions.
The violation could be a bad act, like committing a new crime, or a failure to act, like not getting the parole officer's permission to leave the county or state before going out of town.
Minor or technical parole violations can land parolees back in prison, or in jail.
Depending on the rules of the jurisdiction, the prisoner may spend weeks, months, years, or the remainder of the original sentence back behind bars.
The prisoner may also be granted a new parole hearing set to occur after serving some specified time.
Types of sentences in Kenya
Note The Prisons Act has various provisions including parole/remission, but it is not practised in Kenya.
Section 24 of the Penal Code states the various types of sentences the court may award. They include:
1. Death
This is mandatory for murder, treason, robbery with violence or attempted robbery with violence.
It can only be imposed on adults above the age of 18 years.
The sentence cannot be imposed on a pregnant woman.
2. Imprisonment
It is the most popular punishment and it entails the actual physical restraint of the offender by placing him in custody.
The highest duration is life imprisonment. It may be with or without hard labour.
The purpose of imprisonment is to restrain, contain and rehabilitate the offender.
The prisons department, therefore, runs a number of programmes mostly skills imparting ones such as carpentry, woodwork, knitting etc. Additionally, they have counselling and chaplaincy services for the offenders.
The court does not determine which prison the offender will go to.
Prison department has maximum and medium-security prisons, and the offenders are distributed to the facilities depending on the number of years of sentence, the nature of offence and their previous records consideration may also be given to the type of programme that the offender may be most suited for and its availability to this end there is a reception facility that classifies and categorizes offenders for this purpose.
3. Fines
This is the sum of money payable for statutory offences, misdemeanours and discretionary felonies.
4. Forfeiture
This is the relinquishing of property as punishment for the commission of a crime.
Section 29 of the Penal Code makes provision of forfeiture for offences committed under Sections 118 and 119 of the PC where the property, the subject of which the order has been given, cannot be traced, then the court will assess the value and require the offender to forfeit such amount to the court.
5. Compensation
Section 31 empowers the court to order an offender to compensate any person injured by his offence, either in addition to or in lieu of any other penalty –in practice criminal courts will usually on order compensation where the monetary value is straightforward, otherwise compensation is usually left to the civil courts to comprehensively asses.
6. Probation
Probation this is the system where the offender instead of being awarded the other sentences provided is placed under the supervision of a probation officer; the aim of the sentence is to rehabilitate the offender while he is living in his normal surroundings and continuing with his routine in life it is governed by Cap 64 Laws of Kenya.
The court before making a probation order takes into consideration the nature of the offence, age of the offender, whether he is a first offender.
The magistrate will then request for a probation officer’s report to be prepared.
The report will be prepared based on interviews with the accused, a victim of a crime if need be, other persons that the probation officer considers relevant.
The aim of the report is to determine the social circumstances of the offender and whether or not the offender would benefit from the probation.
The report will usually contain a recommendation on the suitability of the offender for probation or any other sentence.
It is then handed to the magistrate who if they accept it will explain to the offender the terms, including an indication by the offender that they are willing to be placed on probation and their consent must be recorded.
The terms of probation may include issues relating to residence, use of alcoholic beverages etc.
The offender is required to signify the acceptance and willingness to abide by the terms and conditions of the probation order.
An order will then be made in the appropriate form and signed by the offender and the court. a breach of probation order will result in the offender being produced in court and the court may then cancel the order substitute probation with any other sentence.
7. Community services
Types of the works carried out under the Act are:
a. Construction or maintenance of public roads or roads of access;
b. Afforestation works;
c. Environmental conservation and enhancement works;
d. Projects for water conservation, management or distribution and supply;
e. Maintenance work in public schools, hospitals and other public social service amenities; works of any nature in a foster home or orphanage; ’rendering specialist or professional services in the community and for the benefit of the community.
The court may require a report from a community service officer before making an order.
The court shall not make an order unless the offender is present in court, and there are adequate arrangements for the execution of the order. Where a report exists the court must be satisfied that an offender is a person suitable to perform community service.
The offender must consent to be placed on Community Service Orders (CSO).
8. Security for good behaviour
Section 33 provides that an offender may be required by the court to enter into recognizance with or without surety in addition to any other sentence to keep the peace for a specified period.
9. Absolute and conditional discharge
This section provides that where having regard to the circumstance including the nature of offence and the character of the accused that it is inexpedient to inflict punishment and that a probation order would not be appropriate, then the court may absolutely or conditionally discharge the offender upon the condition that they shall not commit other offences for a period not exceeding 12 months a breach will result in the accused being brought back to court and sentenced for the previous offence in respect of which he had been discharged.
