Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Phillip Maxwell Milburn

20 August 2021

Reasons for Decision

Offences and Conviction

Phillip Maxwell Milburn (“the applicant”) is currently serving a sentence of imprisonment of 3 years and 9 months with a non-parole period of 1 year, 10 months and 15 days imposed upon conviction on charges of aggravated burglary and aggravated armed robbery.

Parole Eligibility Date

The applicant became eligible to be considered for parole on 30 October 2020, but the hearing of his application was adjourned on that day, and on 2 other occasions on 15 January and 12 March 2021 due to lack of suitable accommodation.

The applicant ultimately appeared before the Board in respect of his application at the hearing on 20 August 2021 and 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: -

1. The application;
2. Comments on passing sentence;
3. Papers provided by the Director of Public Prosecutions;
4. Prison summary;
5. Record of prior convictions
6. Prison episode summary report;
7. Pre-parole report;
8. Home assessment.

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 is serving his sentence due to the involvement with two other offenders in a pre-mediated “home invasion” in an attempt to steal money from the victim who was known to the applicant.  Despite an initial failed attempt to invade the victim’s home due to him being able to lock the offenders out, the applicant returned early the next morning with the two other individuals and they proceeded to enter the property, disguised and armed with a baseball bat and a torch.  The victim woke and was attacked and knocked to the ground, losing consciousness. The applicant was high on “ice” at the time of the offending, and although involved in the joint enterprise, apparently was not directly involved in the violence perpetrated and suffered by the victim.

The applicant’s lesser role in the crimes was recognised by the Court at the time of sentencing but Acting Justice Porter noted the applicant was still criminally responsible for the injury and trauma suffered by the victim.  The applicant has a long history of offending, predominantly for traffic and drug offences but there is some history of dishonesty and violence, contributed to in a large part by the applicant’s addiction to illicit drugs, namely intravenous morphine, and methamphetamine.

The applicant reportedly has suffered significant mental health issues relating to his drug use. Additionally, in 2018, the applicant suffered an acquired brain injury (ABI) due to a heart attack which has caused the applicant to suffer from seizures and memory loss since then.  The applicant is currently being treated with medication in relation to these health issues.

The applicant is not without prospect of rehabilitation.  He participated in a residential rehabilitation program in around March 2018 and applied himself well until he was discharged from the program due to consuming alcohol at a family function contrary to program policy.

During his custodial sentence, the applicant’s compliance and behaviour has been largely positive, and while some internal offending occurred in the early stages of his sentence, no internal offending has been recorded in the past 12 months. The applicant has attained a minimum classification, is accommodated in the O’Hara Cottages, and is employed with a prison grounds work team.  The applicant completed the EQUIPS Foundation program in late 2019 and more recently engaged with Alcohol and Drug counselling.

Due to the applicant’s memory and cognitive functioning issues resulting from his ABI, the applicant’s complex needs have affected the ability of the applicant to secure appropriate accommodation since he became eligible to be considered for parole, leading to his application being adjourned on three occasions. There has also been a need for significant and appropriate supports to be in place in the community prior to any consideration of his suitability for parole.

However, the applicant has recently been granted NDIS funding and has secured appropriate supported accommodation. He will be able to access appropriate therapeutic support associated with his mental health issues and substance abuse and will be assisted through his NDIS plan to access additional supports required to assist him to function on a daily basis in the community.  The applicant also has good family support available to him from his mother with who he has had regular contact during his incarceration.

Despite the applicant’s complex needs, on the basis that the appropriate supports and supervision are now in place, Community Corrections have assessed the applicant as suitable for parole.

The Board concurs with this assessment and accordingly determines the applicant is suitable to be afforded the opportunity for parole.

The Board’s determination

Parole Granted

Special Conditions

• Not frequent the municipality of Deloraine

Paroled from 31 August 2021 - 1 November 2022