Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Wayne Keith Herlihy

26 November 2021

Reasons for Decision

The Background:

Wayne Keith HERLIHY (“the applicant”) is serving a sentence of imprisonment imposed upon his conviction for Stealing, Aggravated Burglary, Aggravated Robbery, Stealing x3 and Computer Related Fraud x4 .

The applicant became eligible to be considered for a parole order on the 02/12/2021.

The applicant appeared before the Parole Board at its hearing on the 26/11/2021.  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 of 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 was in his fifties and working as a taxi driver when he came across his victim, a 74 year pensioner.  His victim required some domestic services in his home and the applicant offered his services to complete the task but also took the opportunity to steal an amount of cash from the premises.  He then informed his niece who was living with him at the time of the victim and she, with others, went to the victim’s home to steal from him on one occasion using the applicant as a driver.

For the victim the ordeal must have been terrifying. He was threatened and struck with a shotgun and kicked whilst on the ground.  His home was searched for money and items were taken.

The applicant has a criminal history and had periods of community supervision under Probation and Community Service Order.   For those orders for which records remain it appears the applicant was compliant. Contributory to the applicant’s offending on this occasion was his susceptibility to the negative influences of his niece and her associates.

The applicant has served his sentence of imprisonment in a positive manner with good case notes and reports from his work as a general hand in oyster baskets.

Were he to be granted parole the applicant has accommodation available at a supported facility which will assist him complying with his parole requirements.  The applicant also has assistance through NDIS as a result of his cognitive impairment.

Noting the applicant’s compliant behaviour whilst in custody and the support available to him in the community the Board find the applicant’s prospects for successful integration back into the community in a prosocial manner would be enhanced by a parole order being granted at this time.

The Board’s determination:

Parole is approved

Special conditions applied:

• No contact with certain named persons

Paroled from 6 December 2021 - 17 January 2023