Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Justin Craig Cleaver

30 October 2020

Reasons for Decision

Offences and Conviction

Justin Craig Cleaver (“the applicant”) is currently serving a sentence of imprisonment of 3 years and 3 months with a non-parole period of 19 months and 14 days imposed upon his conviction for matters of dangerous driving, driving whilst disqualified, refusing to submit to taking a blood, evading police, breach of suspended sentence, aggravated assault and a parole revocation.

Parole Eligibility Date

The applicant became eligible for consideration for a parole order on 9 January 2020.

The applicant appeared before the Parole Board at its hearing on 30 October 2020. 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 was read to the applicant prior to his appearance at the hearing.

Registered Victim

No registered victims

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 High Court, in Power v The Queen (1974) 131 CLR 623 rejected the proposition that the primary purpose of parole is the rehabilitation of the offender, deciding that it is "to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, 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".

The system of parole does recognise, however, the capacity of people to 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 in reducing recidivism.

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, the ability to remove or mitigate that risk by the imposition of appropriate conditions and understanding the victim’s “voice” and the desire to continue to punish for the criminal wrongdoing.

Consideration

The applicant has a lengthy criminal history of driving offences including driving whilst disqualified, driving under the influence and evade police.  His custodial term was imposed upon his conviction for dangerous driving, driving whilst disqualified, refuse to submit to a blood test, breach of suspended sentence and aggravated assault.

At the time of being sentenced for these matters Pearce J said the following;

“he has no entitlement to any lenience and points to a strong need for punishment, specific deterrence and protection of the public.  It paints a picture of a man who has, over a prolonged period, displayed disregard for the law and to authority and is a danger to the public, the police and to himself, especially when behind the wheel of a car.”

Concern with respect to the suitability of the applicant for a parole order arises from  his past failures to comply with orders for community supervision including parole orders granted in 2016 and 2019.  The 2019 order was revoked in January 2020 for noncompliance.  It is however noteworthy that the report of the supervising officer in respect of this period of parole notes there was an initial period of engagement and compliance until ultimately the applicant returned to drug use.

The applicant’s addiction to illicit substances is a contributory factor to his offending behaviour. This addiction is one of long standing and it is a concern that the applicant’s internal offending up until February of this year within the prison is indicative of an ongoing drug issue. The applicant professes an intent to deal with his addiction and there is no doubt he will require significant supports to do so.  It would clearly be of benefit to the community were the applicant to achieve this aim as it is his drug use that is central to his offending, remove that factor and there is every reason to believe that the applicant’s offending will likewise cease.  However the entrenched history of drug use, the past failures to comply with parole orders and return to drug use and offending raises significant concern regarding the applicant’s ability to reform regardless of the degree of his determination.

The application for parole initially came before the Board in April of 2020.  At that time the application was adjourned with a request for the applicant to demonstrate positive behaviour.  Whilst there was an internal offence in May of 2020 of encouraging another inmate to engage in riotous behaviour his internal offending had otherwise ceased.  When he returned before the Board in July and his application was refused.  It was again emphasised to the applicant at that time that he should focus on his behaviour before reapplying.

Case notes regarding the applicant since the July refusal of parole reflect a change in his attitude with a significant number of positive reports regarding his behaviour and he is now classified at medium security.

Suitable accommodation is available for the applicant from which he can serve his parole period and he has secured an offer of employment to commence upon his release.  The applicant will also be able to enter into the pharmacotherapy program when in the community.  On assessment by Community Corrections it is noted that the applicant would benefit from supervision under a parole order with a focus on unpacking an entrenched pro criminal belief system as well as dealing with drug abstinence and is considered suitable for a parole order.

The Board notes the significant work the applicant has undertaken on himself to improve his attitude and compliance whilst serving his custodial term.  He asserts he is motivated by his son to improve his circumstances and lifestyle.  He states he has recognised he needs to “grow up” and become more mature.  The fact that he is able to continue on the suboxone program and has employment available to him is significant.  By his successful effort in improving his internal behaviour the applicant has demonstrated that he can with determination and motivation achieve changes in his attitude and behaviour.

The Board’s determination

Parole is approved.

Special conditions applied

Not associate with certain named persons.

Paroled from 9 November 2020 - 5 August 2021