In the matter of the Corrections Act 1997
and
In the matter of an Application for Parole by NM
The prisoner, NM, was convicted of forcible abduction and rape on 15 November 2002 and sentenced to imprisonment for four years.
The sentencing Judge stated that the prisoner had no prior criminal record; had a good work record; and that there was no reason to think that he was likely to commit another crime.
The prisoner has maintained a contention that he was not guilty of the offence and is totally innocent.
Notwithstanding this stance the jury found the prisoner guilty.
The Parole Board does not have the authority to question the reliability of a Judge’s verdict and can not look behind such a verdict. Protests of innocence by any prisoner to the Parole Board cannot carry any weight.
The prisoner was assessed as unsuitable for a Sexual Offenders Treatment Program as he continued to maintain his stance of innocence and was therefore judged as not a suitable candidate for that program.
Usually the Parole Board will not grant parole to a prisoner convicted of sexual offences unless they are willing to undergo a treatment course for sexual offenders and will be reluctant to grant parole to a person convicted of sexual offences who do not take responsibility for their crime and show sufficient remorse.
This is not a practice that must always be followed as each application for parole must be considered on their individual merits after weighing up all the factors which the Board is obliged by S72(4) of the Corrections Act to consider.
These factors are as follows:
(a) the likelihood of the prisoner re-offending; and
(b) the protection of the public; and
(c) the rehabilitation of the prisoner; and
(d) any remarks made by the court in passing sentence; and
(e) the likelihood of the prisoner complying with the conditions; and
(f) the circumstances of the gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment; and
(g) the behaviour of the prisoner while in prison; and
(h) the behaviour of the prisoner during any previous release on parole; and
(i) the behaviour of the prisoner while subject to an order of a court; and
(j) any reports tendered to the Board on the social background of the prisoner, the medical, psychological or psychiatric condition of the prisoner or any other matter relating to the prisoner; and
(k) the probable circumstances of the prisoner after release from prison; and
(ka) any statement provided under subsection (2B) by a victim of an offence for which the prisoner has been sentenced to imprisonment; and
(l) any other matters that the Board thinks are relevant.
These factors are not given any particular weight or prioritised in any particular way though some factors such as “likelihood of the prisoner re-offending”, “seriousness of an offence” and “protection of the public” would invariably be given more weight than “the behaviour of the prisoner while in prison”.
A negative finding by the Parole Board in relation to one factor might be fatal to the application for parole even though the prisoner ranked well in relation to all other criteria, whilst Parole might be granted to a prisoner despite a poor ranking on several criteria. The Parole Board must weigh up all the factors and give such weight as it considers appropriate to each factor when considering parole.
In the case of NM the Parole Board considers that parole should be granted despite the fact that he maintains his innocence and this makes him ineligible to undergo the Sexual Offenders Treatment Program.
In considering the factors the Parole Board is required to consider the Board notes:
(a) it considers that the likelihood of the prisoner re-offending is small and the public would not be in danger. In this context the Board notes the comment of the trial Judge that the prisoner had no prior criminal record and that there was no reason to think that he is likely to commit another crime and that the prisoner has already enjoyed the advantages of day release without any problems.
(b) The prisoner is likely to be rehabilitated back into the community if released. He had a previous excellent work record and is able to return to his previous employment as a baker. He is presently in negotiations to assume ownership of that business which employs several people. The prisoner has a home and supportive family to live with on his release. There is every incentive for him to behave and he is likely to become a worthwhile member of the community.
(c) The prisoner has an unblemished record whilst in prison.
(d) Although the prisoner appears to lack “remorse” and is ineligible for the Sexual Offenders Program, due to his protestation of innocence, this is only one factor to be considered (although usually given much weight) and is outweighed by other factors.
(e) NM’s Pre-Parole Report states:
“NM is aged 24, literate and has a job, home, supportive family and girlfriend to go to on his release. He has realistic plans and, in my opinion, he has the ability to complete a parole period”.
Parole is granted. To be released on parole on the 9th November, 2004 and remain on parole until the 1st November, 2006
