Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by W S B

20 August 2021

Reasons for Decision

The Background

WSB (the applicant) is currently serving a sentence of imprisonment of 2 years and 4 months with a non-parole period of 14 months imposed upon conviction on the charge of rape.

Parole Eligibility Date

The applicant became eligible to be considered for parole on 28 August 2021.

The applicant appeared before the Board in respect of his application at the hearing on 20 August 2021.

On that occasion the applicant 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 had been read to the applicant prior to his appearance at the hearing.

Registered Victim

There is a registered victim.

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.”

Documentation

The Board has had regard to the following documents in considering the application: -

• The application;
• Comments on passing sentence;
• Papers provided by the Director of Public Prosecutions;
• Prison summary;
• Record of prior convictions
• Prison episode summary report;
• Pre-parole report;
• Home assessment.

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’s offending was a serious incident of digital rape involving the applicant repeatedly penetrating the vagina of his victim in a relatively public location, after getting drunk at a local hotel. Both the applicant and his victim were significantly intoxicated, so much so that neither the applicant nor his victim reportedly has any memory of the incident.  This fact does nothing to mitigate the significant breach of trust this crime involved, as the victim was known to the applicant, having known each other for years, and the victim clearly trusted the applicant sufficiently to leave the hotel with him late at night. Nor does this reduce the clear psychological impact and devastating effect on the victim, described to the Court at the time of sentencing.

However, it appears this crime was significantly out of character for the applicant, and as noted by the Court at sentencing, the applicant had prior to this led a “blameless and industrious life”. He has no significant prior convictions and since leaving school in year 12, has been in steady employment, and has been in a relationship with his wife for seven years, despite a brief separation because of this charge.

The applicant has engaged in New Directions program during his custodial term to address the nature of his offending.  A report provided suggests that the applicant’s offending was opportunistic and impulsive rather than deviant, and he was assessed a very low risk for reoffending.  It is reported the applicant did not deny or minimise the impact of his offending and expressed recognition that his use of alcohol prior to the offence was excessive, leading to impulsivity and becoming a “cocky drunk” socially. Despite the fact he has stated that previously his alcohol consumption was not any different to his peers, he has expressed an intention not to drink to excess or such unsafe levels again.

The applicant has also engaged in compliant behaviour while serving his sentence. He has attained a minimum classification and is accommodated in the minimum-security prison, with no history of internal offending. He has been gainfully employed in the prison bakery and case notes reflect a high standard of work and mentoring of younger prisoners starting in the bakery based on the skills and knowledge he has built through his consistent employment.

The applicant will also have the benefit of returning to his previous employment if released on parole and will return to accommodation in a prosocial and supportive environment, receiving support from his wife and family, which has continued throughout his time in custody.

In his application and on interview before the Board, the applicant expressed acknowledgement and remorse for the seriousness of his crime and the ongoing impact on his victim. He appeared motivated to actively use the skills and insight he had gained from the New Directions program to ensure such offending does not occur again on his return to the community.

In the pre-parole report provided to the Board Community Corrections have assessed the applicant as suitable for a parole order noting he has been assessed as requiring a low level of supervision due to the assessment of his ongoing risk to the community as low.  While the impact on the victim of the applicant’s behaviour cannot be underestimated, the Board has considered the applicant’s low level of risk, the existence of protective factors such as family support and employment and the applicant’s likelihood of active engagement in assessing the applicant as suitable for a parole order.

The Board’s determination

Parole is approved

Special Conditions

• To obtain and comply with a mental health care plan:
• To not contact the victim directly or indirectly

Paroled from 31 August 2021 - 28 October 2022