Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by T B E

29 January 2021

Reasons for Decision

The Background:

T B E (“the applicant”) is currently serving a sentence of imprisonment of 3 years and 6 months with a non-parole period of 21 months imposed upon his conviction for rape.

The applicant became eligible for consideration for a parole order on 11 January 2020.

The application initially came before the Board at its meeting on 13 December 2019. At that time the application had to be adjourned due to the absence of suitable accommodation. Following that adjournment the application was again before the Board at its meetings of 3 July 2020 and 15 January 2021. On both occasions the application was again adjourned. Initially the application was adjourned to obtain a psychological assessment report and on the second occasion was adjourned awaiting the availability of suitable accommodation.

Ultimately the application was heard before the Parole Board at its hearing on 29 January 2021. 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.

Registered Victims

Yes

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

Whilst the conviction against the applicant is for rape the conduct is better considered as a matter of violence in the context of a domestic relationship rather than a sexually motivated behaviour.  The rape was constituted by the applicant forcing an object into the vagina of his victim, and was motivated by anger and the desire to hurt rather than for his sexual gratification.  The effect was, nevertheless, to hurt, subjugate and humiliate his victim.  At sentencing the victim described to the Court how, understandably, life changing this event had been for her.

When sentencing the applicant, the Court noted its expectation that the applicant he would, during his custodial term, engage in therapeutic work directed toward anger management specifically and his personal development generally.  The applicant has however engaged in the New Directions course and not undertaken any therapeutic work directed toward family violence and anger management.  This appears, however, not to have been caused by any intent by the applicant not to engage in such programs.  If granted parole it is anticipated that the applicant would be directed to attend a family violence intervention program and he has indicated his preparedness to do so.

The applicant has engaged in compliant behaviour whilst serving his sentence.  He has been gainfully employed as a senior hand in the Tailor shop. He is classified as requiring minimum security.  The applicant has also had the opportunity of one s42 leave into the community and was compliant with all the requirements of that leave.

Accommodation has been located for the applicant and has been assessed by Community Corrections as suitable.

The applicant has a reasonable industrial record, interrupted somewhat by his poor physical and mental health.  Prior to imprisonment he held regular employment and he is expecting to be able to re enter the workforce with the assistance of a labour hire firm.

A report was commissioned by the Board from a psychologist, Ms O’Donnell to assist in the assessment of the risk of future violence posed by the applicant’s return to the community. In her assessment she noted that the applicant was a “recidivist family violence offender across relationships” and was a high risk of committing future acts of domestic violence.   There are some protective factors that can or do exist.  Ms ODonnell has identified these factors to include alcohol abstinence, his current single status, his realistic plans for a pro social lifestyle and his acceptance of the need to participate in a family violence program.

In their pre parole report Community Corrections have assessed the applicant as suitable for a parole order noting the compliant and responsive manner in which he has served his period in custody, the capacity to engage him in therapeutic programs addressing the risks to his offending behaviour in the community and the suitability of his accommodation.

At his hearing before the Board the applicant presented as motivated toward reform and understanding of the reprehensible nature of violent offending particularly in the context of a domestic relationship.  This has been his first experience of a custodial environment and he has solid plans for employment and appropriate activity upon his release.  Whilst the risk of future offending remains the applicant’s intention to not offend, the inputs to be put in place under a parole order and the requirement to remain drug and alcohol abstinent support this application for parole.

The Board’s determination

Parole is approved.

Special conditions applied

To obtain and comply with a mental health care plan;

To not contact the victim directly or indirectly.

Paroled from 10 February 2021 - 11 October 2021