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Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by J M B

26 July 2019

Reasons for Decision

The Background:

JMB (“the applicant”) is currently serving a sentence of imprisonment of 5 years with a non-parole period of 2 ½ years imposed upon his conviction for manslaughter.

The applicant became eligible for consideration for parole on 21 July 2018.

The applicant’s application came before the Board on 26 July 2019. On that occasion the applicant was present at the hearing and was invited to provide any information he had in support of his application and made himself available for questioning by the Board.

A pre-parole report prepared on behalf the Board had been read to the applicant prior to his appearance at the hearing.

Statutory Criteria

In determining the application, the Board has had regard to the following statutory criteria:-

The Corrections Act 1997, s72, establishes a statutory criteria for determining suitability for parole.

S72 (4) specifically provides as follows:

“In determining whether or not a prisoner should be released on parole, the Board is to take into consideration –

  • The likelihood of the prisoner re-offending; and
  • The protection of the public; and
  • The rehabilitation of the prisoner; and
  • Any remarks made by the court in passing sentence; and
  • The likelihood of the prisoner complying with the conditions; and
  • The circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment; and
  • The behaviour of the prisoner while in prison and, if he or she has been in a secure mental health unit, while in that secure mental health unit; and
  • The behaviour of the prisoner during any previous release on parole; and
  • The behaviour of the prisoner while subject to any order of a court; and
  • 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, including in the case of a prisoner who is or has been a forensic patient any report of the Chief Forensic Psychiatrist; and
  • The probable circumstances of the prisoner after release from prison; and
  • Any statement provided under subsection (2B) by a victim, or, if subsection (2AB) applies, the parent or guardian of the victim, of an offence for which the prisoner has been sentenced to imprisonment; and
  • If the prisoner is a sex offender prisoner, any notice or assessment given to the Board pursuant to section 31(6) or (7) concerning the prisoner's participation or non-participation in appropriate treatment; and
  • Any other matters that the Board thinks are relevant.”

When considering the application for parole of a sex offender s31(3)(b) of the Act is also relevant:

  • “The Director, on giving the sex offender prisoner the opportunity to participate in the appropriate treatment, is to inform the prisoner that…
  • Participation, non-participation or unsatisfactory participation will, if the prisoner becomes eligible for parole, be factors taken into consideration by the Board in determining whether the prisoner should be released on parole.”

The purpose of parole:

The system of parole recognises the capacity of some prisoners for change and reform, the benefits of supervision, treatment and program delivery in the community and ultimately the potential this has for the protection of the community by reducing the risk of reoffending and supervising the reintegration of offenders.

When considering eligibility for parole this purpose must be weighed against the risk each prisoner may pose to members of the community if released to serve the remainder of their sentence amongst them and the ability to remove or mitigate that risk by the imposition of appropriate conditions.

Consideration:

The applicant is 19 years of age. He began using cannabis and drinking alcohol at approximately the age of 12 years. More recent to his offending behaviour he commenced use of crystal methamphetamine (ice).

The applicant has engaged in offending behaviour since a youth and has in the past been subject to probation and community service orders. Indeed, at the time of his current offending behaviour he was subject to a probation order. Previous offences include matters of stealing, burglary, aggravated burglary and assault.

At the time of his sentencing on this matter the Court noted that the nature of his criminal history revealed “a reckless disregard for life and deliberate risk-taking”.

The applicant had surrounded himself with a like-minded antisocial cohort who had disregard for the safety of others, themselves and the law.

The applicant also suffers from mental health and cognitive deficits which contribute to his poor decision making. A report from psychologist, Mr Damian Minehan, obtained at the time of his sentencing, noted the existence of “poor judgment, impulsivity and tendency to not foresee all care about consequences”.

Certainly these deficits were reflected in a lengthy and continued history of poor behavioural episodes and rule infractions whilst housed at the Ashley Youth Detention Centre. The poor behaviour was unremitting and frequent. Indeed it was noted by the staff at the Ashley Youth Detention Centre that the applicant, despite then being 2 years into his sentence, appeared to show no movement toward rehabilitation or showing remorse.

Upon entering into the adult prison environment the applicant’s behaviour appears to have moderated. Whilst between 30 July 2018 and 30 January 2019 there continued to be some occasions of misbehaviour, specifically possession of an article that was not authorised, resisting or obstructing a correctional officer and refusal to comply with a direction or order, the behaviour that was previously evident in the Ashley Youth Detention Centre context had significantly reduced. This change reflects a greater maturity and improved insight. When queried about this at the time of the hearing the applicant noted that he had decided that he needed to “pull his head in” and to “care”.

The applicant has engaged in therapeutic programs including the Equips Addiction Group, Apsley, Equips Aggression, Smart Recovery (which is ongoing) as well as engaging in vocational work including certificate III in asset maintenance, Foundation English and a certificate I in skills for vocational pathways. The latter two are both ongoing.

The applicant has had the benefit of one section 42 leave episode to provide an opportunity for engagement with his support network in the Community. This leave was conducted without incident.

The circumstances of the applicant’s offending was horrendous. As a result of his actions a family have been left bereft of their partner and mother and a child has had a premature and abrupt entry into the world. For that child their birthday will forever be a reminder of the death of their mother.

At the time of his offending behaviour the applicant was 15 years of age. As identified above he was the product of significant mental health, cognitive, drug abuse and antisocial impacts and influences. In this context, it was nevertheless the applicant who decided to steal and drive a vehicle. He was accompanied by three other youths all of his age or younger. Whilst driving the vehicle, he engaged in a prolonged period of unsafe driving through various regions of greater Hobart.

At the same time, the victim, then 33 weeks pregnant, was driving her two-year-old child home after having dropped her partner at his work. Driving lawfully the victim drove into the intersection coming into collision with the vehicle driven unlawfully and heedlessly by the applicant resulting in a catastrophic collision and the victim’s death.

In sentencing the applicant the Honourable Justice Wood noted particularly the following:

  • “He is remorseful and has a level of understanding of the impact of his conduct”;
  • “Mr Minehan states that the defendant’s cognitive capacity, as well as his values and personality, as they have developed to date, play a role in limiting his ability to fully appreciate the results of these actions.”;
  • “… maturity and emotional growth may bring a greater level of appreciation of the terrible harm he has caused.”;
  • “An important sentencing objective in light of the defendant’s age is his rehabilitation. It is in the public interest that young offenders be rehabilitated.”;
  • “It is a strong link between risk factors such as drugs and alcohol and his past offending and there are signs that he is motivated to avoid drug use and alcohol on his release.”;
  • “The need for supervision, guidance and intervention by a range of specialist services is acute. If the defendant cooperates with the support and intervention that is offered to him and he continues to work hard at programs and his education, he has prospects of reform.”

The applicant has made a previous application for parole, which was refused primarily on the basis that he was not at that stage ready for a parole order and needed to engage more in addressing his offending behaviour and addictions. A concerted effort has been made to provide significant supportive structure for the applicant were he to be released on a parole order through the auspices of NGO community supports. Input to be provided by non-Government organisation's (NGO) include caseworker support daily to assist planning activities and meeting needs, initial staff sleepover nightly, assistance in budgeting, shopping, running a household, engaging in prosocial activities, emotion management, further education, attendance at appointments etc. The level of input to be provided is significant and affords the applicant the greatest potential to be able to comply with and rehabilitate under parole order supervision in the community.

Whilst serving his custodial sentence the applicant has achieved a minimum classification and is described as having worked hard on managing his behaviour and showing progress in areas that he would normally respond negatively in. His custodial record certainly reflects growth in maturity and expanded prospects for rehabilitation and reform.

This positive change has also been recognised by the Apsley Program facilitators and reflected in their expert report. Specifically they have noted positive change and reduction of dynamic risk factors.

A pre-parole assessment was undertaken of the applicant and he was identified as suitable for release. It was specifically noted that he has a number of service providers able to provide him with a comprehensive and coordinated support upon his release to assist him to reintegrate into the community and to pursue his rehabilitation. Those support providers include NGO and the National Disability Insurance Scheme.

It is important that the applicant maintain his contact with those services upon any release into the community.

Victim impact statements provided at the time of trial by the victim’s former partner and mother have been considered. The extent of their loss is beyond comprehension.

The applicant is young and by reason of that youth there remains prospect for his reform. Certainly during the custodial term there have been indications of improved insight, attitude and motivation toward compliance and prosocial behaviour. This move would be supported the provision of a parole order. Under a parole order the applicant has the opportunity for significant input from a number of agencies to assist in his reintegration into the community.

On balancing all matters parole is approved.

The Board’s determination:

Parole is approved.

Special conditions applied:

Subject to the usual conditions of a parole order, including not to associate with certain named persons.

Paroled from 6 August 2019 - 21 January 2021