Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Brendan James Gray

23 July 2021

Reasons for Decision

The Background:

Brendan James Gray (“the applicant”) is serving a sentence of imprisonment of 32 years with a non-parole period of 17 years imposed upon his conviction for Murder, Arson, Aggravated Burglary and Stealing.

The applicant became eligible to be considered for a parole order on the 3^rd of August 2021.

The applicant appeared before the Parole Board at its hearing on the 23^rd of July 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.

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, in the company of others, forced entry into the home of a defenceless man at night. The group beat their victim before shooting him and setting his home, with him inside it, on fire.  At sentencing the Court described the events as “…one of the worst types of murder.  It involved the invasion of a respectable citizen’s home by three aggressive and drunken men who were intent on robbing him at gunpoint, and willing to inflict very serious violence if he resisted.  It involved extraordinary cruelty as well as murder.  It involved the destruction of the victim’s residence in order to conceal the commission of the murder.  Crimes like these cause lasting fear in the community…”.

There were some redeeming features of the applicant which the Court recognised.  He had been making “significant progress” in his own rehabilitation.  He had led a “stable life” between 1998 to 2002 working and studying and was a family man with a supportive partner and young child.

This positive focus and motivation toward reform have continued whilst the applicant has been in custody.  He is now housed in the O’Hara units which sit just outside the perimeter walls of the prison, is a trusted inmate, has positive behavioural reports and has been tested for illicit substance use on several occasions with nil positive readings.

The applicant has held employment on a full-time basis at the Risdon Vale Neighbourhood Centre to positive reports and has engaged in many therapeutic and vocational courses over the years.  He has participated without issue on reintegration and socialisation leave within the community.

The applicant does have a history of offending which has seen him engage with Community Corrections on Community Service and Probation Orders in the past.  He has had an unfortunate childhood, was homeless and laboured under addiction particularly to alcohol.  Despite this, however, and as commented on at the time of sentencing he has demonstrated the capacity and intent to live a law-abiding life.  At his hearing before the Board the applicant pointed to his family as a significant motivating factor for him. He had been able to maintain sobriety and has suitable and supportive accommodation available for him upon release.

The actions of this applicant have resulted in the premature and violent death of the victim and the significant loss to victim’s family.  Nothing will repair the harm caused by his actions.  The best that can be hoped for is that this applicant is able to reflect on his conduct, learn from it and grow from it so that he no longer presents a risk to others.  By the way he has served his custodial sentence, the trust that he has earned as a result and the efforts he has made to engage in work to ensure his growth and to equip him with the skills to maintain a pro social lifestyle attests to the applicant’s suitability for a parole order.

The Board’s determination

Parole is approved

Special conditions applied

• Not to contact the victims directly or indirectly
• To obtain and comply with a mental health care plan
• To be electronically monitored

Paroled from 3 August 2021 - 3 August 2036