Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Mark James Smith

6 August 2021

Reasons for Decision

The Background:

Mark James SMITH (“the applicant”) is serving a sentence of imprisonment of 2 years, 8 months imposed upon his conviction for Armed Robbery, Possess or use controlled plant or its products x2, fail to comply with a direction of the Director of Public Health.

The applicant became eligible to be considered for a parole order on the 14^th of August 2021.

The applicant appeared before the Parole Board at its hearing on the 6^th of August 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.

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

This is the applicant’s first custodial sentence.  Before this offending his criminal history consisted of some traffic, family violence and public disorder offending.  In line with this history, he has had little contact with Community Corrections. Perhaps atypically then, at the time of his offending the applicant armed himself with a knife, covered his face with a stocking, entered the Ulverstone Subway store and demanded the young shop attendant to place the money from the till into a bag, threatening her with the knife to make her do so.

The applicant’s offending on this occasion was motivated by his need to obtain money to purchase drugs. Indeed, by the time of his arrest all the money he had obtained had been used for that purpose.

The issue of drug addiction has remained a problem for the applicant during his custodial sentence. At the commencement of the sentence, he used buprenorphine however has engaged in alcohol and drug counselling. He accesses counselling through the Bridge program over the phone and can transition to in person counselling with them upon his release. The applicant has expressed a determination to remain drug free and indeed can point to periods in the past where he has been able to maintain periods of abstinence.

Complicit in his drug addiction is the applicant’s experience of historical trauma which he has not had the opportunity to address whilst serving his sentence, but which could become a focus upon his return to the community.

The applicant is classified as medium security.  His behavioural reports are positive, he has maintained employment as a general hand however has several rule breaches for, most significantly, refusing or failing to provide a sample for the purpose of substance testing.  This gives rise to concern as to whether the applicant has indeed ceased illicit substance use.  At the time of the hearing before the Board the applicant indicated the failure to provide a sample in the custodial setting was not to hide illicit substance use but was due to a functional inability to provide a sample in that environment.  He asserts that there would be no difficulty in providing samples in pathology once back in the community which would allow for his supervision and monitoring for drug abstinence.

The applicant has attempted to access other therapeutic input but remains on the waiting list for programs including Equips Aggression, Addiction and Foundation.

If afforded a parole order suitable accommodation is available for the applicant and he has the offer of employment.

The applicant has been described by his drug and alcohol counsellor within the prison as having worked diligently to address his past drug addiction, that he has worked on understanding the issues underpinning his addiction and gaining the tools to avoid relapse.

The Board have assessed the applicant as suitable for a parole order.

The Board’s determination

Parole is approved.

Special conditions applied

Nil

Paroled from 16 August 2021 - 14 December 2022