Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Gavin Raymond McIntosh

26 February 2021

Reasons for Decision

The Background

Gavin Raymond McIntosh (“the applicant”) is currently serving a sentence of imprisonment of 8 years with a non-parole period of 6 years imposed upon his conviction for aggravated burglary, committing an unlawful act intending to cause bodily harm, stealing and a previous parole revocation.

The applicant had been previously before the Board for hearing on 13 November 2020. However, it was adjourned on that occasion for a period of just over three months for the applicant to demonstrate improvement in his behaviour whilst in the custodial environment.

The applicant appeared before the Parole Board ultimately at its hearing on 26 February 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.

Registered Victims

Yes

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 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 has previously been granted parole in respect of this sentence.  He first came under a parole order on the 20^th of March 2019.  That order would, if complied with by the applicant, have been completed by him in April 2021.  However, during the period of parole, the applicant was difficult to supervise.  He used drugs in clear breach of his parole conditions and generally exhibited an attitude of entitlement and a failure to take personal responsibility.  This led ultimately to the revocation of his parole order.

The applicant’s offending for which he is currently serving his sentence of imprisonment was violent and exposed members of the community to personal injury and a terrifying ordeal. It is accordingly appropriate that in assessing the applicant’s suitability for a parole order the Board, in addition to those matters under s 72, pay particular regard to whether the applicant has been able to learn from his previous experience on parole, change his mindset, be open to supervision and take responsibility for his actions.

The applicant has a lengthy prior criminal history which includes several matters involving violence to the person.  Indeed, at the time of his sentencing the Court noted that the applicant’s criminal history demonstrated that crimes of violence were not an “uncharacteristic aberration” for him.  The criminal history suggests that the applicant lived a lifestyle where he embraced lawlessness and a contempt for authority.  It is, however, a positive feature that the applicant was not charged with any criminal offending during the previous period of parole and other than an incident of damaging a microwave immediately following his appearance before the parole board on the 13^th of November 2020 he has maintained good behaviour since that meeting.  Case notes also reflect a marked improvement in the applicant’s behaviour during this time including testing negative for illicit substance use.

At the time of his appearance before the Parole Board the applicant acknowledged the shortfall in his attitude previously and strongly asserted that he had learnt from the experience and would be putting compliance with and supervision of his parole order as his primary objectives.  This is supported somewhat by report from his counsellor in the prison who has noted a distinct improvement in attitude.

There have been some mental health concerns with respect to the applicant, his previous approach to parole and return to the prison environment and he would be assisted by obtaining access to psychological support upon return to the community through a mental health care plan.

Accommodation that is suitable and meets his needs remains available to him upon his return to the community and there appears a lot of positive support available to him including that provided by the Onesimus organisation who have been facilitating the applicant’s relationship with his son.

Assessment by Community Corrections supports the applicant as suitable for parole noting that his supervision would be enhanced by electronic monitoring and that he would benefit from psychological and drug and alcohol counselling inputs upon his return to the community.

Noting that the applicant’s presentation before the Board, the manner in which he has conducted himself since November 2020, the internal reports of improved behaviour, and the added supervision able to be provided by electronic monitoring it is concluded by the Board that the applicant is suitable for a further parole order.

The Board’s determination

Parole is approved.

Special conditions applied

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

Paroled from 10 March 2021 - 21 June 2022