Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Shane Michael Emmerton

1 October 2021

Reasons for Decision

The Background:

Shane Michael Emmerton (“the applicant”) is currently serving a sentence of imprisonment of 16 months with a non-parole period of 10 months imposed upon conviction for charges of assault.

The applicant became eligible to be considered for parole on 30 September 2021.

The applicant appeared before the Board in respect of his application at the hearing on 1 October 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 occurred in the context of family violence, and involved serious assaults committed against the victim with whom the applicant was in a relationship. The assaults involved the applicant forcibly preventing the victim leaving the place she was staying with him by restraining her, hitting her around the head and face, in addition to holding her down on a bed, causing bruising and marks to her chest and shoulders.

While the applicant was not charged with family violence offences, the Court at sentencing noted the applicant’s behaviour was an “example of wanton cruelty and violence upon a female in the context of a relationship”. The applicant’s prior history includes breaches of family violence orders, assault, and some drug related offending.

The Board has had regard to the effect of the applicant’s behaviour on the victim. As outlined in a victim impact statement provided to the Board, she continues to suffer panic attacks and flashbacks to the incident, causing her to feel unsafe, anxious and struggling to leave the safety of her home.

A contributing factor to the applicant’s offending is his abuse of illicit drugs and struggle with an addiction to methamphetamine, which although not constant has been a recurring problem for him over the past decade. It is reported the applicant has had periods of abstinence of around six to twelve months before returning to use, but that at the time of his offending he was using methamphetamine and cannabis daily.

The applicant has demonstrated compliance throughout his custodial sentence, with no internal offending reported. He has attained minimum classification and case notes reflect the applicant’s positive pattern of behaviour and attitude. He has held various trusted employment positions in the prison, including in the prison laundry, as a leading hand in the Veggie Shed and more recently in the storeroom and as a wardsman in the minimum-security prison

The applicant does demonstrate prospects for rehabilitation. He had a stable upbringing with no exposure to family violence or abuse, and family members who reportedly had no tolerance for drug use of anti-social behaviour. The applicant currently has a positive relationship with his parents who have maintained contact during his custodial sentence and will continue to support him on release into the community.

The applicant has three children from a previous relationship and has an amicable co-parenting relationship with their mother. He is motivated to reconnect with them through regular fortnightly contact at his nominated accommodation, which has been assessed as suitable and supportive.

Due to the limited length of the applicant’s sentence, including time spent on remand, despite requesting to participate, the applicant has not had the opportunity to engage in therapeutic programs regarding his offending. However, it is reported the applicant has reflected on his actions and the significant impact on the victim, and believes his imprisonment was an appropriate punishment for the serious nature of his offending.

At interview by the Board, the applicant expressed remorse for his offending, and explained that his time in prison has had a positive effect, enabling him to cease his drug use. The applicant reported he has gained weight, is staying fit in the gym, and is feeling healthy and determined to avoid relapsing into use. He acknowledged that returning to drug use in the community would likely lead to him losing everything he had worked on in prison, including the opportunity to reconnect with his children.

Community Corrections has assessed the applicant as suitable for parole due to his apparent motivation to re-engage in employment, reconnect with his children, and live a healthy lifestyle free from problematic substance use. To assist with management of any risk factors, the applicant will be required to engage in individual counselling with Holyoake in relation to relapse prevention and support in relation to family, relationship, and parenting matters.

The Board agrees with the assessment that the existence of the protective factors noted above, in addition to the supervision and constraints of a parole order will provide the applicant an opportunity to be supported in his attempt for a lifestyle change and transition back into the community.

The Board’s determination

Parole is approved

Special Conditions Applied

• Not to contact the victim directly or indirectly

Paroled from 12 October 2021 - 11 April 2022