Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Benjamin Shane Moran

14 August 2020

Reasons for Decision

The Background:

Benjamin Shane Moran (“the applicant”) is currently serving a sentence of imprisonment of 12 months with a non-parole period of 7 months imposed upon his conviction on a number of matters including driving a motor vehicle with a prescribed drug present, possession of a drug, possession of ammunition and breaches of bail.

The applicant became eligible for consideration for a parole order on 21 August 2020.

The applicant was heard before the Board at its meeting 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.

The pre-parole report prepared on behalf of 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 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 punish for the criminal wrongdoing.

Consideration

The applicant is serving a sentence of imprisonment in respect of a myriad of offences including a number of traffic, drug and breach of bail matters and possession of ammunition.

Drug use is a significant and material contributing factor to the applicant’s offending behaviour. The applicant has expressed a wish to be substance free however has struggled with achieving this goal in the past. This is no better demonstrated by the difficulties the applicant has experienced in complying with court and community based orders and supervision.  In 2015 he breached a suspended sentence, in 2018 whilst on parole he failed drug testing and is suspected to have engaged in drug related offending behaviour during the parole period and in 2019 a court mandated diversion drug treatment order was cancelled through his non-compliance.

Nevertheless, whilst serving his custodial sentence the applicant’s behaviour has been compliant. He has achieved a minimum classification and is described in the case notes as polite and respectful.

Accommodation identified for the applicant to reside at for the duration of the parole period has been identified as suitable and supportive.  A risk factor for the applicant is the resumption of his previous pro criminal associations.  The applicant recognises this as a risk factor for him.  He points to his young children as significant motivation for him to remain drug free and not engage in crime.  He has identified positive community supports that are also prepared to assist him on release.  The applicant also recognises that, following the death of his sister, he wants to support his parents and not let them down through his behaviour.

At the hearing of his application the applicant was able to outline plans he wished to action upon his release including wood cutting, enrolling in a Tafe Tasmania course and engage in counselling.  He appeared future focused.

The applicant has been identified by Community Corrections as suitable for a parole order.  The Board agrees with that assessment.

The Board’s determination

Parole is approved.

Special conditions applied

Mental health care plan.

Paroled from 24 August 2020 - 24 February 2021