Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Andrew Clint Whiley

28 August 2020

Reasons for Decision

The Background:

Andrew Clint Whiley (“the applicant”) is currently serving a sentence of imprisonment of 2 years with a non-parole period of 15 months imposed upon his conviction for matters of dangerous driving and driving whilst not the holder of a licence.

The applicant became eligible for consideration for a parole order on 12 April 2020.

Initially the applicant’s application came before the Board on 3 April 2020. Subsequently the application had to be adjourned on a number of occasions due to the unavailability of suitable accommodation and outstanding documentation. Finally at the Board’s meeting on 22 May 2020 the application was adjourned to 28 August 2020 with a request that the applicant maintain good behaviour during that period. 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.

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 is currently serving a sentence of imprisonment for driving matters and has a significant past record for driving offences, as well as other matters involving dishonesty and violence, although he has never held a licence to drive in this State.

Despite apparently stable family circumstances, he is a married man with children, he nevertheless has shown an ongoing pattern of disregard for the rules of society and the entitlement the community has to feeling safe and secure whilst they go about their daily business.  There is no doubt that the manner of the Applicant’s driving in the way he did during the current offending exposed the public to significant risk of harm.

The Applicant’s use of illicit substances and an anxiety and personality disorder have been identified as contributory factors to the Applicant’s behaviour.

The manner in which the Applicant has served his sentence of imprisonment is also a cause for some concern. He has engaged in a number of internal offences including the assault of other inmates, being insulting and found in unlawful possession of items.  This behaviour resulted in a lengthy maximum classification of the Applicant.  There has, however, been a significant change in the Applicant’s behaviour and attitude.  At the time of the hearing of this application the Applicant had achieved a medium classification and had not engaged in any internal offending behaviour for over seven months.  This represents a significant reversal when compared with his prior conduct and attests to the Applicant’s claim of motivation to comply with society’s expectations and norms of behaviour.

In light of his past attitude and record of offending it is perhaps not surprising that the Applicant has been the subject of Probation orders in the past which he has struggled to comply with.

The Applicant has some positive case notes and they reflect that his access to therapeutic programs within the prison system has been frustrated not from the want of interest by him but, apparently due to matters outside his control.  Supervision under a parole order in the community will be able to assist the Applicant to engage in such programs upon his departure from custody.

The Applicant has, however, been able to participate in the Apsley program for the first few months of this year.  The exit report from Apsley notes that in past the Applicant has been hampered by his core belief that no one can tell him what to do, that he was able to identify this way of thinking as relevant to his past offending and that by the program’s conclusion a positive shift in his behaviour had become apparent.

Accommodation available to the Applicant if successful in gaining a parole order has been assessed as suitable.

This Applicant was originally substantively considered by the Board in May 2020 at which time it was decided to adjourn for a period of three months so that it could be ascertained whether the Applicant’s apparent and material change in attitude and behaviour was fleeting or rather represented a genuine motivation and desire to pursue a new path.  In the intervening period the Applicant has been able to maintain good behaviour and attitude.  He has also shown some maturity in engaging with treatment for his mental health issues which will assist his future stability and allow him to maintain his current pro social focus.

In the pre parole assessment of the Applicant undertaken by Community Corrections it is noted that the Applicant “…has taken significant steps to address his mental health, behaviour and rehabilitation” since his March appearance before the Board and he was supported as an appropriate candidate for an order.  The Board concurs with this assessment.

The Board’s determination

Parole is approved.

Special conditions applied

That the Applicant obtain and comply with a mental health care plan.

Paroled from 7 September 2020 - 12 July 2021