Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Jake Harley Hattenschwiler

12 November 2021

Reasons for Decision

Background

Jake Harley Hattenschwiler (‘the applicant’) is currently serving a term of imprisonment of 3 years and nine months, with a non-parole period of 2 years and 3 months imposed upon conviction of the charge of grievous bodily harm.

The applicant became eligible to be considered for parole on 8 August 2021, but the Board refused his first application for parole at its hearing on 6 August 2021. The applicant was recommended to focus on his behaviour in the custodial setting and engage in offence specific therapeutic intervention.

The applicant appeared before the Board in respect of this subsequent application at the hearing 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.

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.

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 punish for the criminal wrongdoing.

Consideration:

The applicant, with two other offenders, entered the home of the victim, demanding drugs and threatening him with firearms, one of which the applicant discharged into the victim’s face causing catastrophic injury and ultimate loss of one eye. The applicant’s actions have without question had a serious and permanent impact on the victim. As described in his victim impact statement provided to the Court, the incident significantly affected his day to day living in addition to leaving him traumatised and afraid of living on his own.

The applicant has a significant criminal history involving crimes of violence to the person and dishonesty. Addiction to illicit substances is a contributory feature of his offending, both while under the influence of drugs and as a motivation to obtain drugs.

He has struggled to address his drug use despite numerous opportunities on community-based sentencing orders. He has served previous sentences of imprisonment and two previous parole orders granted in 2008 and 2012 were both revoked shortly after the applicant was released to the community. Other efforts at diversion and community supervision on orders have been unsuccessful, and although the applicant initially exhibited positive engagement in a 2017 Drug Treatment Order, the applicant was unable to successfully complete the order despite a range of supports and intensive case management available to the applicant.

The applicant has spent a significant part of his adult life in a custodial setting and is somewhat institutionalised as a result. While the applicant’s positive engagement in therapeutic intervention, including the Equips Addiction and alcohol and drug counselling, was recognised by the Board, his previous application for parole was refused due to concerns as to his suitability for parole at that time.

The applicant was recommended to continue to focus on his behaviour and engage in offence specific treatment. Most recent reports provided indicate the applicant has indeed exhibited an improvement in behaviour and ongoing positive engagement in therapeutic processes since his last application.

The applicant has attained a minimum classification, has relocated to accommodation in the minimum-security prison and is employed as a wardsman. He has continued to engage with alcohol and drug counselling and seek therapeutic support to assist him to deal with the impact of trauma suffered as a child and his inability to regulate his behaviour. Reports indicate the applicant has commenced on the Buvidal program and the applicant stated when interviewed that this has assisted him to maintain level mood and behaviour contributing to the improvement in his attitude and engagement in supports.

The applicant has nominated accommodation that has been assessed as suitable, pro-social and supportive, and continues to maintain his relationship with his partner and child who have provided support throughout his incarceration.

While relapse to drug use remains a significant risk for the applicant on release, the applicant has actively sought referral to supports within the community, including ongoing alcohol and drug counselling and commencement of psychological counselling on release.

Community Corrections have identified concerns relating to the applicant’s high level of institutionalisation and mental health issues, stating the applicant will continue to require a high level of supervision if released into the community. The applicant’s positive steps and motivation to address these concerns have however been acknowledged in the pre-parole report and in addition to the apparent stable and pro-social circumstances proposed upon his release, these factors have led to a recommendation that the applicant is suitable for a parole order.

While the applicant’s risk factors remain high given his history on supervised orders, the Board accepts the recommendation and is satisfied any identified risks can be adequately managed through strict parole conditions and the existence of electronic monitoring.

The Board’s determination

Parole granted

Special Conditions

• Must not contact or associate with named co-offender
• Must submit to electronic monitoring

Paroled from 22 November 2021 - 8 February 2023