In the matter of the Corrections Act 1997
and
In the matter of an Application for Parole by Gerald Wayne Hyland
28 May 2004
Background
The Applicant was sentenced to a period of imprisonment of some 16 years in relation to one count of rape and one count of manslaughter. The sentencing Judge, the Honourable Mr Justice Wright, ordered that the sentence of imprisonment was to run from the 26th June 1993, being the date that the Applicant was first taken into custody.
His Honour, although empowered to do so by Section 12B of the Parole Act 1975, chose not to impose a non-parole period in relation to the sentence imposed upon the Applicant. As such the Applicant therefore became eligible to be considered for parole on the 26th June 2001.
After an extensive interview process the Applicant was released on parole on the 31st July 2002 by the Board as it was then constituted (see reasons for decision of Messrs Cooper, McKee and Mrs Fisher).
On 10th October 2001 Mr Hyland was directed to appear before the Board as a result of the Board receiving information that Mr Hyland had allegedly breached a condition of his parole.
On Tuesday 29th October 2002 Mr Hyland attended before the Board to answer an allegation that he had breached Clause 19 of his parole order by being found upon licensed premises.
Mr Hyland was interviewed about this incident by the Board as then constituted on the 29th October 2002 and he admitted breaching Clause 19 of his parole order. The Board was of the view that the breach was serious enough to warrant a suspension of Mr Hyland's parole for a period of seven days.
On 29th day of January 2003 the Board issued a warrant for the arrest of Mr Hyland after receiving information that he may have left the State of Tasmania in breach of the condition of his parole.
The warrant was executed and on the 7th February 2003 Mr Hyland appeared before the Board as then constituted with his solicitor Mr P Warnbraum. Mr Hyland, through his solicitor admitted that he had left the state in breach of his parole conditions and that he had been charged with a number of offences in connection with a raffle he had organised for a charitable organisation. Mr Hyland, through his solicitor indicated to the Board that it was his intention to defend the matters and a plea of not guilty would be entered to the various charges.
The Board was advised that Mr Hyland had breached his parole by leaving the state of Tasmania as a result of him panicking and assuming that his parole would automatically be revoked as a result of being charged with the offence of stealing.
The Board as then constituted revoked Mr Hyland's parole on the 7th February 2003.
Mr Hyland was initially charged with a number of counts of stealing. He was ultimately convicted of two counts of dishonestly acquiring a financial advantage contrary to the Criminal Code Act 1924 Section 252A and was sentenced to seven days of imprisonment cumulative to any sentence of imprisonment he was then serving
He appealed the sentence imposed upon him by the learned Magistrate on the sole grounds the sentence was manifestly excessive. The appeal was heard by the Honourable Mr Justice Blow on 10th December 2003. Mr Justice Blow dismissed Mr Hyland's appeal against his sentence and delivered a written judgment on the 22nd December 2003 (see Hyland v Jensen 2003 TASSC 141.)
Present Application for Parole
In relation to his present application for parole Mr Hyland has been eligible to be considered for parole since the 27th August 2003. He has appeared before the Board on the following dates;
(1) 16th January 2004
(2) 30th January 2004
(3) 25th March 2004
(4) 21st May 2004.
Mr Hyland has been interviewed by the Board as it is presently constituted on a number of occasions.
The Board had before it the following materials when considering Mr Hyland's present application for parole;
(1) the extensive parole file;
(2) an amended pre-parole report prepared by his probation officer dated 21st January 2004;
(3) information prepared by his probation officer regarding each breach of his parole;
(4) information form Corrective Services Division;
(5) the relevant portions of the Police and DPP files;
(6) written submissions filed on behalf of Mr Hyland by his solicitor.
The only discernable difference between the Applicant's present application for parole and his previously successful application for parole are the two incidents which led to him breaching the conditions of his parole and the offence he committed whilst on parole.
In every other regard the Applicant meets the statutory criteria to be granted parole and the Board as presently constituted agrees with the reasoning adopted by the Board as constituted in granting the Applicant parole on the 31st July 2001 (see reasons for Decision of the Parole Board as then constituted by Messrs Cooper McKee and Mrs Fisher.)
The two breaches of parole and the offence committed whilst on parole were of great concern to the Board when assessing Mr Hyland's present application for parole.
One of the statutory criteria which the Board is required to take into account is the Applicants behaviour during any previous period of parole. (see Section 72(4)(h) of the Corrections Act 1997.)
Mr Hyland was interviewed at length by the Board on the 30th January 2004. During this interview he was questioned by all Board members as to the circumstances which lead to him breaking his parole and his explanation for doing so.
The breach of most concern to the Board was Mr Hyland leaving Tasmania without permission from the Board to do so.
He indicated to the Board that his decision to leave Tasmania was ill conceived and made on the spur of the moment in a state of panic and confusion.
He indicated to the Board that upon being advised by an individual that he intended reporting him to Tasmania Police for allegedly stealing moneys, he panicked at the thought of his parole being revoked and he being returned to prison. Mr Hyland put to the Board that he was blamed by a great number of the prison population for the Amendments that occurred to the Corrections Act (1997) in 2002. He informed the Board that he had received death threats and threats of physical violence. It was matters such as this that lead him to decide to leave Tasmania. The Board accepts Mr Hyland's explanation for his decision to leave Tasmania, but in no way accepts his explanation as a justification for breaching his parole.
At the interview on the 30th January Mr Hyland indicated to the Board that with the benefit of hindsight he should have sought assistance from his probation officer rather than have taken matters into his own hands. It was clear to the Board that should difficult situations of any kind confront Mr Hyland in the future whilst on parole he would discuss such issues with his probation officer.
The Board notes and takes into account that Mr Hyland has been in protective custody since having his parole revoked. Such a situation lends some weight to Mr Hyland's explanation to flee the jurisdiction.
The Board also notes and takes into account that the period of time that Mr Hyland spent out of the jurisdiction was short lived. The Board was advised by Mr Hyland that he himself made arrangements to surrender himself to Victorian Police Officers.
Mr Hyland indicated that upon reflection his decision to leave Tasmania was ill-founded, hence his decision to hand himself into Victoria Police to be returned to Tasmania.
Offences Committed on Parole
The Board is aware and takes into account that whilst Mr Hyland was on parole he was charged with and convicted of two counts of dishonestly acquiring a financial advantage.
One of the statutory criteria that the Board is required to take into account is an Applicant's conduct during any previous period of parole (see Section 72 (4) (h) of the Corrections Act 1997). Clearly the commission of offences whilst on parole is a matter of concern to the Board.
At the interview on the 30th January 2004 this issue was canvassed with Mr Hyland at length. The Board was advised by Mr Hyland that he was initially charged with an significant number of counts of stealing. He advised the Board that after negotiations with his solicitor the Prosecution section of Tasmania Police amended the charges from ones of stealing to two counts of dishonestly acquiring a financial advantage. Mr Hyland advised the Board that he had pleaded not guilty to the previous stealing charges and maintained his pleas of not guilty to the two counts of dishonestly acquiring a financial advantage.
The two counts of dishonestly acquiring a financial advantage related to Mr Hyland selling two raffle tickets at a cost of $2.00 each.
The circumstances surrounding the offences Mr Hyland committed whilst on parole are fully outlined in the decision of Mr Justice Blow (see Hyland v Jensen 2003 TASSC 141). The Board takes into account the comments made by the Honourable Mr Justice Blow in his reasons for decision.
The Board also takes into account the matters raised by Mr Hyland in relation to the commission of these offences which were as follows:
(a) Initially he was charged with a significant number of offences which were not pursued by Tasmania Police.
(b) He entered pleas of not guilty to the initial charges.
(c) He was convicted of two counts of dishonestly acquiring a financial advantage by selling two raffle tickets at a cost of $2.00 each.
(d) When he appeared before the Board Mr Hyland continued to maintain that he was innocent in relation to the two offences for which he had been found guilty, but fully accepted the decision of the Magistrate and was aware that it was a matter which the Board must take into account in his present application for parole.
(e) That one of the reasons that he breached his parole was a fear of being returned to prison as a result of these offences and the fact that a significant number of the offences were not proceeded with give credence to his plea of not guilty.
The Board as it is presently constituted has had the benefit of interviewing Mr Hyland on a number of occasions and also has had the benefit of hearing from Mr Hyland and reading the substantial transcripts of previous interviews between Mr Hyland and the Parole Board as then constituted. The Board has also taken into account reports prepared by Dr I Sale and Dr C Williams.
As noted above Mr Hyland in relation to his first application for parole met the relevant statutory criteria to be granted parole. The only differentiating factor between Mr Hyland's previous application for parole and his present application for parole was the commission of an offence of dishonesty whilst on parole and two breaches of parole.
The Board does take into account and notes that prior to Mr Hyland breaching his parole by leaving the state of Tasmania his probation officer at the time was of the opinion that he had been progressing well on parole and that there was every reason to believe that he would continue to progress well on parole.
The Board is satisfied with the explanations that Mr Hyland has provided in relation to the breaches of his parole. The Board has indicated to Mr Hyland that whilst it members accept his explanation the Board does not consider his explanation in any way justifying his decision to breach his parole. One of the matters which the Board has taken into account in its deliberations in deciding whether or not to grant Mr Hyland parole was the fact that he has a far greater understanding of the assistance that can be offered by his probation officer should he encounter difficulties of any nature during his period of parole. The Board also notes and accepts Mr Hyland's assertion that there would be no further breaches of his parole should he be granted parole.
The Board notes and takes into account that the incident which led to Mr Hyland's parole being revoked on the 7th February 2003 has resulted in him spending some sixteen months in custody.
Mr Hyland is fully aware that any further breach of his parole could result in him being returned to prison and serving a further proportion of his sentence until he satisfied the Board that he should be granted the privilege of parole again. In relation to his present breach of parole it has taken him some sixteen months to successfully re-apply for parole.
The Board as presently constituted is of the opinion that Mr Hyland's prospects of re-offending are minimal.
The Board has also contacted the Victims Assistance Unit and enquired whether or not the Carter family wish to place any further material before the Board for its consideration. The Carter family declined to do so. The Board however, has taken into account the previous statements made by the Carter family in relation to this matter.
In all the circumstances the Board has formed the view that the Applicant meets the statuary criteria to be granted a further period of parole. The Applicant is under no illusion that should there be any further breaches of his parole that his parole could be revoked and that he will return to prison. The Board is of the view that the Applicant's return to prison as a result of his breaching his parole and the length of time that he has been in custody as a result of that breach will serve as a reminder to him that any further breach of parole will potentially be met by a return to prison.
