Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Duc Van Nguyen

26 March 2021

Reasons for Decision

Offences and Conviction

Duc Van Nguyen (‘the applicant”) is currently serving a sentence of imprisonment of 4 years and 9 months with a non-parole period of 2 years 4 months and 15 days imposed upon his conviction for charges of trafficking in a controlled substance and dealing with proceeds of crime.

Parole Eligibility Date

The applicant became eligible to be considered for parole on 8 April 2021.

The applicant had previously had the benefit of a parole order granted from 7 January 2019 associated with his index offending, but this order was revoked in July 2019 after the applicant was charged with related serious offences. The applicant re-applied for parole in 2020 but due to the imposition of a further custodial sentence on the outcome of the new charges just prior to a scheduled hearing in May 2020, the applicant’s application and appearance before the Board was cancelled.

The applicant subsequently applied for parole and appeared before the Board in respect of his application at the hearing on 26 March 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 Victims

No registered victims

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’s offending relates to his involvement in the trafficking of illicit drugs, namely the sale of methylamphetamine. The applicant’s index offending occurred during 2015-2017 when the applicant was involved in a trafficking operation, after having commenced using methylamphetamine in 2009 and developing an addiction that ultimately led to the applicant becoming involved in trafficking to support his addiction.

At the time of his offending the applicant was involved in the restaurant business and his prior criminal history existed only of infringement notices relating to traffic and minor police offences.

The applicant was granted parole in relation to this offending at a hearing before the Board in December 2018.  In granting parole, the Board considered the applicant’s positive and compliant behaviour and his engagement in a number of therapeutic courses to address his drug dependency.

However, upon release on parole, within a short space of time the applicant returned to his previous behaviour and commenced use of illicit drugs in addition to continuing to traffic small amounts of methylamphetamine to various customers.  The applicant was ultimately charged and remanded in custody regarding this offending and his parole order was revoked.  The applicant was subsequently sentenced to a further 3 years and 6 months associated with his offending while on parole.

Since his return to custody the applicant has demonstrated compliant behaviour, with only one incident of internal offending recorded in early 2020.  The applicant has recently attained a medium low classification and is now housed in the minimum-security unit in Ron Barwick Prison.  He is currently employed as a general hand in the Vegetable Shed, and all case notes are of a positive nature.

The applicant did undertake the Gottawanna program to address his drug and alcohol soon after his return to prison, but due to COVID -19 and ongoing operational limitations for programs, the applicant remains waitlisted for further therapeutic intervention.  A report provided from the Gottawanna program notes the applicant expressed remorse for his addiction and past choices and behaviour, particularly in relation to the impact of his offending on his family and others affected.

In his application and on interview by the Board, the applicant did reiterate his remorse for the impact of his offending on the broader community and appeared to recognise the need to make better choices so he could be a better role model for his family.  The applicant spoke about his second son being born during his incarceration and his motivation not to use drugs so he is able to support his family and spend time with his young children.

Accommodation nominated by the applicant has been assessed as suitable and supportive.

The applicant has been assessed by Community Corrections as having medium risk/needs profile but report that the applicant appears to be in a good position to continue engagement with his recovery in the community. His attitude and insight into his offending behaviour and impact on his family and community suggest he is willing to continue his rehabilitation and demonstrate change. As such he is recommended for parole.

The Board concur with this assessment and determine the applicant is suitable to be afforded a further opportunity for parole.

The Board’s determination

Parole Approved

Special Conditions

Subject to the normal conditions of a parole but order but additionally:

• Must be referred to, assessed for, and attend and engage in specific drug and alcohol counselling as directed by the Probation Officer.

Paroled from 8 April 2021 - 5 May 2025