Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Zack David Devine

12 November 2021

Reasons for Decision

Background

Zack David Devine (‘the applicant’) is currently serving a term of imprisonment imposed upon conviction for charges of dangerous driving and driving while disqualified.

The applicant became eligible to be considered for parole on 22 July 2021.

The applicant first appeared before the Board in respect of his application at the hearing on 9 July 2021, at which time the Board adjourned the application to allow time for the applicant to demonstrate improved behaviour in the prison environment and continue engagement in therapeutic intervention.

The application came before the Board again at its meeting on 12 November 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.

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:

This applicant is now 24 years old. He has a persistent history of driving related offences as a relatively young offender including drive whilst disqualified and drive with illicit drugs present in blood. This is the second incident of dangerous driving committed while the applicant was in fact at large, having failed to appear in court in respect to a previous charge of dangerous driving. It involved as sustained period of dangerous driving over 15 kilometres through residential suburbs and built-up areas, endangering lives of others to avoid interception by police.

At the time of this offending, and indeed during commission of earlier crimes, the applicant was using methylamphetamine. It is reported his use commenced at the time he was attempting to deal with a difficult relationship breakdown.

The applicant’s history of compliance on supervised orders is poor. In addition to several community-based orders, he was granted a period of parole in September 2019, but the order was revoked in December 2019 due to non-compliance, drug use and reported new offending.

Since returning to custody, the applicant has also struggled with compliance in a custodial setting with several internal offences recorded in the past 12 months. While the applicant did complete the EQUIPS Addiction program in May 2021, he was subject to disciplinary action relating to testing positive for buprenorphine on 4 May 2021, resulting in a regression in his classification. The exit report from the EQUIPS program suggests the applicant struggles with emotional regulation and this may be a factor in his past addictive behaviours and reliance on illicit drugs in the custodial setting.

In July 2021, based on concerns by Community Corrections regarding the applicant’s poor history of compliance in the community and a prison setting, the Board adjourned the initial application for parole, requesting the applicant focus on improving his behaviour in custody and engaging with other alcohol and drug counselling.

Since that date, no further internal offending has been recorded, although no opportunity has arisen for the applicant to engage one to one alcohol and drug counselling as he is currently waitlisted for therapeutic intervention. Notably, despite this, the applicant has returned 3 negative drug screens since his last appearance before the Board.

The applicant does report a supportive family environment, with his parents continuing to contact him and provide support in addition to the applicant maintaining contact with his two young children through regular visits to the prison. The accommodation nominated by the applicant has been assessed as suitable, with good access to support services and community-based providers. He has some prospect of employment if returned to the community and reports pro-social contacts through his previous involvement in sport, namely football.

Community Corrections have previously held concerns for the applicant’s ability to comply with a parole order, given his lack of engagement and reoffending in the past. However, it is noted he engaged positively and made good progress in the EQUIPS Addiction program, and opportunities to continue to engage in counselling and rehabilitation prior to the expiration of his sentence in early 2022 are limited.

It is suggested that the structure provided by a parole order would assist to support him with addressing the issues that have driven his offending behaviour in the past, particularly as he is a young offender and rehabilitation remains a priority. As such and based on his improved behaviour and ability to remain drug free over recent months, the applicant has been assessed as suitable for parole.

The Board agrees the applicant should be afforded a further opportunity for parole.

The Board’s determination:

Parole granted

Special Conditions

• Must be assessed for and comply with a Mental Health Plan and recommendations.

Paroled from 22 November 2021 - 22 July 2022