Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by R J H

14 August 2020

Reasons for Decision

The Background:

R H (“the applicant”) is currently serving a sentence of imprisonment of 2 ½ years with a non-parole period of 15 months imposed upon his conviction on 2 aggravated sexual assaults and indecent assault.

The applicant became eligible for consideration for a parole order on 13 January 2020.

The applicant was heard before the Board at its meeting on 14 August 2020. Previously the matter had come before the Board in February and July 2020. On those occasions the application was awaiting determination by Victorian authorities as to his request to have parole transferred to that jurisdiction. That request was ultimately declined. Subsequently the matter was delayed by reason of the unavailability of suitable accommodation. That issue was subsequently resolved and the matter could proceed at the hearing of the Board on 14 August 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 of the Board was 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 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 been convicted of matters involving significant acts of child sex abuse involving two young female victims.  The Applicant denies that he engaged in the offending alleged.  No doubt this denial is relevant to what has been described as a lack of remorse for the offending behaviour.

The Applicant does not have any prior criminal history for similar offending.  It is this absence of any prior record for matters of this kind that led the sentencing Court to allow the Applicant the benefit of a shortest possible parole period.  It therefore becomes the task of the Parole Board to consider the applicant’s suitability for a parole order in light of the matters in s72 of the Act referred to above.

Accommodation has been identified for the Applicant and been assessed as appropriate for him.  He has engaged in compliant behaviour whilst serving his sentence achieving and maintaining a minimum classification. There has been, however, an instance whereby the Applicant had to be warned concerning his bullying behaviour toward other inmates.

The applicant has been assessed on the Static 99R tool as in the below average range for long term risk of sexual recidivism and has been assessed as appropriate for a parole order by Community Corrections in their pre parole report to the Board.  In that report it is noted that the Applicant can be suitably supervised under a parole order and that such an order will enable his access to appropriate interventions.  The Applicant also has the support of Beyond the Wire and it appears that this organisation will assist in linking the Applicant with appropriate medical services upon his release.  Specifically, it appears the Applicant has a diagnosis of post-traumatic stress disorder which would benefit from therapeutic psychological input upon his release.

The offending behaviour will have had enduring negative impacts on the lives of the victims.  The Board has had the benefit of reading the statement provided by one of those victims at the Applicant’s sentencing which refers to the consequences the offending behaviour has had upon her mental health and lifestyle.

Report from internal offender management (IOM) at the prison, whose task it is to engage inmates in post release planning, described the Applicant in case notes as appropriate but “…unwilling to focus on issues identified of relevance…” and as having a “…tendency to ruminate on grievances and perceptions of others…”.

One of the factors relevant for the Board to consider with respect to this application is the participation or non participation of the Applicant in a sex offender treatment program. There has been a lengthy history whereby the Applicant has been purportedly offered engagement in a sex offender intervention treatment programme but has not engaged in such a program due to a number of factors including his mistaken belief that his one on one counselling constituted engagement in sex offender treatment, the timing of his parole eligibility and applications he had made for parole transfer to Victoria and finally the intervention of Covid 19 which resulted in the program being suspended for a period.

The Applicant felt very much aggrieved with respect to this issue and the initial description of his actions as being one of refusal to engage in the program.  In any event he did not undertake the program.  He did undertake counselling on a one to one basis but that counselling was not directed toward sex offender treatment. In part his ongoing pre-Covid failure to engage in the program appears to have been a product of his entrenched sense of aggrievement at how the issue had been earlier dealt with however ultimately the intervention of Covid 19 has removed the accessibility of the program from him.

Engagement or otherwise of the applicant in appropriate treatment in light of the nature of his conviction is a relevant consideration to his suitability for a parole order. The Board has, however, determined that in the circumstances of this particular applicant the failure to have engaged in specific sex offender treatment program does not render him  unsuitable for a parole order noting that the supervision in the community will include him accessing that intervention, the unfortunate history of misunderstanding and miscommunication regarding the offers made to engage him in the program during his sentence and ultimately the inaccessibility of the program due to the impact of Covid-19.

However the propensity of the Applicant to focus on perceived inequities, to be negative and backward looking is a concern.  It will be important for the Applicant’s return to the community that he can shift this focus to become more positive and forward thinking and no doubt his supervision whilst in the community can assist him with this.

The Board’s determination

Parole is approved

Special conditions applied

The Applicant obtain and comply with a Mental health care plan;

The Applicant is not to be in the presence of a child unless in the presence of an approved nominated person.

Paroled from 24 August 2020 - 13 April 2021