Parole Board Decision

In the matter of the Corrections Act 1997

and

In the matter of an application for parole by J J C

Reasons for Decision

Offences and Conviction

J J C (the applicant) has applied for parole.  The applicant is currently serving a life sentence of imprisonment with a non-parole period of 30 years following his conviction for murder.  The applicant became eligible for parole from 14 February 2016.  The applicant was also sentenced to 25 years imprisonment for offences of abduction, aggravated burglary, four counts of causing grievous bodily harm, nine counts of criminal code assault, three counts of indecent assault, six counts of rape, one count of escape and two counts of burglary.  That period of imprisonment was served concurrently with his sentence for murder and has been served in full.

The applicant previously applied for parole in 2016 but was refused. The applicant appeared before the Parole Board for hearing in respect of his current application on 13 April 2018.  After hearing from the applicant and considering the material that was before the Parole Board, the decision was reserved.

The legislative scheme

Section 72(4) of the Corrections Act 1997 (the Act) establishes the statutory criteria for determining suitability for parole 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.”

The purpose of parole:

The parole regime 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.

Documents considered

1. The application;
2. Comments on passing sentence;
3. Victims Assistance Unit correspondence;
4. Victim impact statements;
5. Prison summary;
6. Record of prior convictions;
7. Prison episode summary reports;
8. New Directions exit report;
9. Psychological assessment report of Damien Minehan dated 6 April 2016;
10. Treating psychologist’s reports dated 22 August 2017 and 6 February 2018;
11. Employer’s reference;
12. Pre-parole reports;
13. Home assessment.

Consideration

The offences for which the applicant was sentenced and the comments on passing sentence – ss. 72(4)(d) & (f)

The applicant on his plea of guilty to the charge of murder originally received the mandatory sentence of imprisonment for life. On resentencing the applicant on 23 October 2002 following his application pursuant to s.8 of the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994, Cox CJ stated that the applicant’s criminal conduct “beggars description”. The conduct involved a “sustained course of brutal abduction, assault, sexual abuse and ultimately murder in the vain hope of escaping detection” which “lasted throughout a period of some twelve hours”. His Honour noted that the conduct was “unprovoked, brutal, prolonged, indiscriminate and callous”. He further stated that “[i]n the scale of seriousness of criminal conduct culminating in murder, this case ranks amongst the worst one is likely to encounter”.

The applicant committed the offences in the company of his 16 year old brother. He was 30 years old at the time. Psychiatric evidence tendered during the course of the re-sentencing hearing diagnosed the applicant as having a severe Anti-Social Personality Disorder. He was heavily intoxicated whilst committing the crimes.  His Honour resentenced the applicant to a period of life imprisonment based on his view that he represented a serious danger to the community especially when intoxicated which warranted protection of the public from him for the rest of his life. The gravity of the offending was also such that a finite term was not warranted.

In respect of parole, his Honour noted that the gravity and circumstances of the criminal conduct required that a very long period of time should elapse before the applicant be considered for release on parole. He held, however:

A court which deprives a life prisoner of all hope of eventual release and deprives him of any incentive to reform takes a very serious step and one which is reserved for only the clearest of cases. It is almost impossible to predict the future conduct of a long term prisoner or the threat to society he may present if released in middle or later life. However, the Parole Board is required by the Corrections Act 1997, s. 72(4), to take into account, in determining whether or not a prisoner should be released on parole when a non-parole period has expired, a number of matters including the likelihood of the prisoner re-offending, the protection of the public, any reports tendered to it on (inter alia) the prisoner’s psychiatric condition and the probable circumstances of the prisoner after release from prisons. The Court should proceed on the assumption that these matters, as well as the others set out in that subsection, will be diligently considered by the Parole Board “once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence” (Power v R (1974) 131 CLR 623 at 629). In my opinion, the minimum time that justice requires the applicant serve in the circumstances of this case is a period of 30 years.

The Board agrees with his Honour’s assessment of the applicant’s criminal conduct; it is properly described as a “worst-type case”.

Victim impact statements – s.72(4)(ka)

The Board has been advised by the Victims Assistance Unit that a number of victims are registered in relation to the applicant’s crimes.  Three of them chose to provide the Board with a Victim Impact Statement.

It is clear from those statements that the crimes committed by the Applicant had a devastating impact upon his victims and their families.  They continue to be haunted by thoughts of the applicant’s crimes, are extremely fearful of the prospect of the applicant being released and encountering him in the community.  It is also clear that his victims have experienced profound psychological difficulties in their adult life.

Each of the victims who have provided a Victim Impact Statement to the Board opposed the applicant being granted parole due to the danger they believe he continues to pose to the public and themselves.  The Board has carefully considered their views in determining this application.

The behaviour of the applicant in prison and his rehabilitation – s.72(4)(c) & (g)

The prison episode summary reports that have been prepared in respect of the applicant disclose that he has not been the subject of disciplinary reports in the 12 months prior to their preparation. Further, they refer to the applicant’s “continual long length of positive engagement” and his high standard of work. The applicant attained minimum security classification in May 2003 and has not been regressed since that time. He has been housed in the prison’s independent living units since January 2016.

The applicant has been accessing leave pursuant to s.42 of the Act for the purposes of external employment for many years. In 2015, that leave was extended to reintegration leave with family. In August 2016, the applicant commenced paid employment outside of the prison. He travels to and from work everyday under his own recognisance. All leave has been without reportable incident and any checks conducted have found him compliant with the conditions and restrictions of leave.

While in prison, the applicant has participated in the New Directions, Anger Management and Getting Smart intervention programs. He has also completed courses and engaged in a number of activities in the prison setting. His engagement with prison staff and external service providers is described as “polite and courteous”.

He has also engaged with a psychologist in the community.

Reports – s.72(4)(j)

The pre-parole and psychological reports prepared in respect of the applicant note his dysfunctional upbringing and history of abuse of alcohol. The psychological assessment of the applicant conducted in 2016 also concluded that there was clear evidence of personality disorder with a high number of psychopathic traits.  It was noted that the applicant was then 60 years old, that offending does reduce as age advances and that the more difficult aspects of antisocial personality or psychopathic personality also tend to mellow or reduce with age. Further rehabilitative, psychological and offence-based work was recommended.

The applicant commenced offence-based work with a psychologist in 2017. His treating psychologist noted that a personality disorder is enduring and essentially a way of being and therefore cannot be cured. Psychological interventions can, however, assist individuals with personality disorders to improve their coping skills and behavioural choices. This was noted to be long term work requiring intensive engagement. The key risk factors he identified were the nature of the applicant’s offences, his personality disorder, denial and poor insight into his personality and verbally facile nature. His key protective factor is his age together with his employment, hobbies and therapeutic compliance.

The applicant has participated in a number of sessions with his psychologist. In his report to the Board dated 6 February 2018, his psychologist stated that in his opinion the applicant would not receive further benefit from psychological sessions with him whilst he remains incarcerated. Further, if paroled, he would benefit from an experienced parole officer familiar with personality and risk assessment. It was suggested that a condition of his parole include ongoing risk management and counselling sessions with a clinician experienced in working with the applicant’s personality style and who has specialist risk management training.

Participation in New Directions program – s72(4)(kb)

The applicant participated in the New Directions program. The exit report notes that he fully engaged in the treatment process, completed all written requirement, willingly participated in cognitive behavioural exercises and cooperated with other participants. According to the facilitators, the applicant made solid progress during his involvement in treatment and demonstrated insight into the cognitive, emotional and behavioural factors that were present at the time of his offending. Recommendations included referral to appropriate professional support in the community to further develop strategies for appropriately managing risk factors and to alcohol and drug services for future support.

The probable circumstances of the applicant if released – s.72(4)(k)

The applicant has secured employment in the community. On release he will be offered increased responsibilities and full-time hours. This has been verified by his employer. It is clear that he is a highly regarded employee. His employer has organised private rental accommodation for the applicant. The applicant has commenced paying rent to secure that accommodation pending the decision of the Board.

In addition the applicant has some pro-social family support. He has undertaken s.42 reintegration leave for over two years with his family member without incident.

If released, he will be subject to the supervision of a parole officer for the remainder of his life. He has also agreed to continue to engage in psychological treatment in the community if granted parole.

The applicant’s behaviour during any previous parole order or whilst subject to a court order – s.74(2)(h) & (i)

The applicant has not previously been the subject of a parole order and has had no previous contact with Community Corrections.

Likelihood of reoffending and complying with conditions of parole – s.74(2)(a), (b) & (e)

The risk factors in respect of the applicant have been identified above. They principally relate to his personality disorder and history of offending. His record of prior convictions do not disclose offending of a similar nature. A number of protective factors have also been identified. The applicant’s capacity to live offence free in the community has been tested to the fullest extent possible within the confines of his sentence. He is housed in the independent living units at the prison, has unsupervised leave to attend his employment, and participated in reintegration leave, all without incident. His age is also a protective factor, being associated with a reduction in risk of offending. There have been no reported incidents of him using alcohol either at the prison or whilst on leave and he has committed to continued abstinence. A number of external service providers have committed to working with the applicant if released to assist him to adjust to life outside of prison.

The risk/needs assessment conducted by Community Corrections identified the applicant as requiring a medium level of supervision. Conditions that have been recommended if he is granted parole include ongoing counselling with a psychologist, no consumption of alcohol, non-association with his co-offender and a curfew that would allow him to work. His adherence to the condition of his s.42 leave and excellent behaviour within the prison environment which has been maintained despite the relaxation of controls all suggest the applicant has the capacity to and will comply with any conditions of parole which will be directed at addressing any residual risk that the applicant may reoffend.

These factors suggest that the refusal of parole is not warranted for the protection of the public.

Decision

The Board has carefully weighed the matters required to be taken into account when determining whether to grant parole. The Board appreciates the understandable concerns of the victims which were powerfully conveyed in their Victim Impact Statements. Their views are important; there are, however, a number of other factors which must be considered when making this decision.

Taking all of those matters into consideration, the Board is of the view that the applicant meets the statutory criteria to be granted a parole and that his reintegration into the wider community will best be served by granting him a period of parole with appropriate conditions. Those conditions will include that the applicant not consume alcohol or illicit drugs, that he not enter licensed premises, that he undergo ongoing counselling with a psychologist, be subject to a curfew that does not interfere with his work and that he not associate with his co-offender. Further conditions directed at protecting the victims from coming into contact with the applicant will also be imposed.