Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Nicholas Robin Clark

26 November 2021

Reasons for Decision

The Background:

Nicholas Robin CLARK (“the applicant”) is serving a sentence of imprisonment imposed upon his conviction for Armed Robbery, multiple driving offences, Commit a Nuisance, Breach of bail x7, Breach of bail conditions x18 and Possess controlled plant or its products.

The applicant became eligible to be considered for a parole order on the 14/10/2021.

The applicant appeared before the Parole Board at its hearing on the 26/11/2021 after having been adjourned from the 1/10/2021 meeting for the completion of reports.  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 spent a significant proportion of his adulthood in prison.  His lengthy criminal history includes drug and driving offending and matters of dishonesty and violence.  By his record alone the issue of risk to the community on the release of the applicant is significant.  Whilst the applicant has not previously sought parole he has, in other forms, come under the supervision of Community Corrections.  He has been sentenced to Community Service Probation and Drug Treatment Orders over the years.  The performance of the applicant under these efforts of supervision and diversion have been unsuccessful with consistent non-compliance, failure of engagement and on occasion reoffending.

The applicant was born into difficult circumstances which in part have continued to influence the narrative of his life.  He has laboured under drug addiction which has contributed to his offending.  Whilst he has requested to access programs to address his addiction and his offending during the current custodial term he has not been able to access that input.  He has, however, been able to undertake the resilience program which he found helpful.

The applicant’s behaviour, certainly at the end of 2020 and part way through 2021 was problematic. He committed internal prison offences including several assaults on other inmates.  With the exception of another instance of assault on an inmate in October 2021 his record of breaches of the rules of the prison appear to have ceased as at May 2021.  It was at this time that he completed the resilience program which may have assisted equip him with better insight into his behaviours and tools to withstand the stressors in his environment.  His case notes indicate that his interactions have been both positive and negative and he appears to have, at times, struggled to cope in custody.  He has, however, engaged well with his planning officer indicating that he has recognised the need for change.

The applicant has five children between the ages of 23 to 5 years of age.  Reconnection and involvement with his children has become a significant motivating factor for him.  He has also been able to access treatment for his mental health and has been prescribed and takes a mood stabiliser.  He attributes the use of this medication to allowing him to become more relaxed with improved attitude and better state of mind than he has had before.

The applicant has asserted the motivation to change.  He has been unable to access any offence based therapeutic intervention during his custodial term thus far.  He will be able to access such intervention more easily when released.  His mental health is more stable and he has been assessed by Community Corrections as suitable for a parole order noting that he would benefit from the supervision and assistance of that order to access programs, support and reintegrate into the community.  He also has the assistance of the TAC and suitable accommodation.

The Board’s determination:

Parole is approved

Special conditions applied:

• Mental health care plan

Paroled from 6 December 2021 - 6 June 2022