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Parole Board

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KC, Hemant

Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Hemant KC

17 September 2021

Reasons for Decision

The Background:

Hemant KC (“the applicant”) is serving a sentence of imprisonment imposed upon his conviction for committing an unlawful act intended to cause bodily harm.

The applicant became eligible to be considered for a parole order on the 16th of July 2020.

The applicant appeared before the Parole Board at its hearing on the 17th of September 2021.  The applicant is Nepalese having come to Australia on a visa with his wife in 2014. English is s his second language. To ensure that he was able to fully participate in the hearing, a  Nepalese interpreter attended and provided translation services during the proceedings to assist the applicant.  The applicant was invited to provide any information he had in support of his application and made himself available for questioning by the Board.

Pre-parole reports prepared on behalf of the Board had been read to the applicant prior to his appearance at the hearing except for the last updated report.  The conclusion expressed in that report was read to the applicant at the hearing and he was offered the opportunity to adjourn the hearing of his application in order that he may have the report read in full and have time to consider any response he may wish to make to it.  The applicant declined the adjournment and wished to proceed with the hearing of the application.

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’s application for parole has been before the Board over an extended period.  He became eligible for parole on the 16th of July 2020 and his application first came before the Board on the 3rd of July 2020.  At that time, it was adjourned with a request that he complete the Family Violence Offender Intervention Program (FVOIP).  It was also evident that the applicant’s visa would be cancelled having been sentenced to more than 12 months of imprisonment and as such his departure from prison under a parole order would result in his deportation back to Nepal, or to a detention facility until deportation could be effected.  It was requested that an investigation into the supports available in Nepal also be undertaken.

The matter again came before the Board in November 2020 and was adjourned so that a report from a psychologist, Amy Washington, could be obtained.  That report was thought necessary given the nature of the applicant’s offence and to assist evaluate the extent of risk he may or may not continue to pose to the community generally and to his victim specifically. The report was obtained, and the application was again before the Board in March of 2021.  At that time the Board again adjourned the hearing of the application until the 17th of September 2021 so that further investigations could be undertaken concerning the timing of the applicant’s return to Nepal if he did get parole.

By the time the application for parole was ultimately heard by the Board at the September 2021 meeting it was clear that the applicant, if paroled, would upon release be immediately taken into the custody of the Australian Border Force and placed into a detention facility awaiting deportation to Nepal.  There are currently no suitable flights between Australia and Nepal and his detention accordingly would be for an indeterminate period.  This was communicated to the applicant, and he nevertheless wished to persist with his application for parole.

The victim of the applicant’s crime is his estranged wife.  She was then resident and working in Launceston whilst he was living in Queensland.  They had separated.  They were married in Nepal when the victim was 15 years of age.  They share a son.  The applicant travelled to Launceston to meet her and during that meeting he locked himself in a change room at Target with his victim and stabbed her with a knife to her face and stomach.  She believed she would die.

The impact of the applicant’s conduct on the victim has been profound.  She is left with permanent residual physical impairments which not only cause her loss of function but also are a reminder of the traumatic events she was subjected to.  She also continues to suffer from the psychological consequences of anxiety, panic attacks and depression.  Her life is irrevocably altered.  She remains fearful for her own safety and that of her loved ones, including her son and family in Nepal.

The question of what degree of risk the applicant poses is relevant to his suitability for a parole order. It is noted that when passing sentence in this matter Pearce J allowed for the “earliest eligibility for parole” noting that “The circumstances which led to the crime were not disputed by the Crown.  They suggest the absence of pre-mediation, that he does not present a danger to anyone else…” This does leave open the question as to the degree of risk he presents to his victim, son and her family.  Whilst the applicant is detained, he presents with negligible risk with the victim resident in Australia and her son and family in Nepal. However upon deportation to Nepal what risk he then presents to his son and victim’s family is a relevant consideration.

Whilst serving his custodial sentence the applicant has engaged in therapeutic work to address his offending behaviour.  Most particularly he has undertaken FVOIP which he completed in August of 2020.  He also applied to participate in the Equips Foundation, Domestic Abuse and Aggression programs but remains on the waiting list for each of them.

The exit report for FVOIP refers to the applicant as having engaged “exceptionally well” during the program.  His strength was identified as a “willingness to use his communication skills to seek feedback and gain reassurance that he is behaving in the right way” and his weakness as focussing on “domestic and practical tasks rather than emotional satisfaction and safety in relationships”.  Ultimately it was felt that a focus on a partner’s needs remains a challenge for him to work through in the future, although he had insight into his own needs and weaknesses.  He was encouraged to maintain safe relationships through developing the skill of listening to the needs of his partner.

Following her psychological assessment of the applicant, Ms Washington identified several issues as having led to the applicant’s violence.  Those factors included his difficulty in adjusting to the breakdown of the relationship, cultural values and deficits in his emotional regulation and coping.  She notes that he has served his sentence of imprisonment compliantly and has “made gains in his mental health, communication and insight into his own needs and vulnerabilities”.  She believes that there may be some benefit in the applicant remaining in the Australian custodial environment to the extent that it may enable him to engage in further therapeutic intervention which will not be available upon his detention and return to Nepal.  She notes that a return to Nepal and to his family’s support will however be a positive factor.

The applicant has been waitlisted for significant periods in his effort to access programs to date without success other than FVOIP.  There is accordingly no means of knowing how accessible such programs will be for him if he remained incarcerated.  The availability of programs is impacted by resourcing and environmental needs at the prison, the demand among the prison population and other factors.  Whilst the applicant clearly has demonstrated that he has been wanting and willing to engage in programs he has up until now been largely unable to do so through circumstances beyond his control.

The applicant is classified medium-low, has no record of internal breaches of the rules and regulations operating within the prison and has consistently positive case notes as to his behaviour.  He has been productively employed in the vegetable shed as a general hand where he has been described as a “good worker that gets on well with everyone…”.

In his application for parole the applicant has expressed remorse and regret for his actions.  He acknowledges that his actions fell below the standards he and his family live their lives by and claims to be working hard to better himself as a person.  He has no relevant criminal record, and this is his first custodial sentence.

Pre-parole assessments conducted by Community Corrections have assessed the applicant as not suitable for a parole order.  This view is principally grounded in the knowledge that if parole were given to the applicant, he would be immediately detained in immigration detention and ultimately deported to Nepal where there are no opportunities for his supervision, to meet his needs and address his risks.  It is noted however that on their assessment of his criminogenic needs on the LSC/MI tool his score is very low at 8.

The applicant’s crime was significant.  He engaged in a close, violent, and bloody attack on his former wife.  However, he has no prior record of committing crime within Australia, has been willing to undertake work on himself to gain an understanding of his actions and expresses remorse for the harm he has caused to the victim.  It is understood that upon his return to Nepal he will reside with his parents who live approximately 25 kilometres away from his victim’s parents and her son. Despite the proximity, the applicant’s parents have not sought to disturb the victim’s parents or their raising of their grandchild for the years in which the applicant has been incarcerated. This may be an indication that the family will be aware of the need to ensure that the applicant also respects the right of the victim’s family to peacefully go about their business without interference from him.  The fact that he has the capacity to understand and regulate his behaviour to comply with rules and regulations is reflected in the compliant way he has served his sentence.

The applicant is appropriate for a parole order.

The Board’s determination

Parole is approved

Special conditions applied

  • Not to contact the victim directly or indirectly

Paroled from 16 November - 16 October 2022

This page was last modified on 30th September 2021.