Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Brady Leigh Wheldon

3 September 2021

Reasons for Decision

The Background:

Brady Leigh WHELDON (“the applicant”) is serving a sentence of imprisonment imposed upon his conviction for Aggravated Evade Police, Drive whilst disqualified, Fail to give way when entering a road, Drive with Prescribed Illicit Drug in Blood and Breach of Suspended Sentence.

The applicant became eligible to be considered for a parole order on the 19/02/2021.

The applicant appeared before the Parole Board at its hearing on the 3^rd of September 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.

The applicant had earlier made application for parole.  That application came before the Board initially on the 12^th of February 2021 but was adjourned to enable a Psychological Assessment Report to be obtained. Subsequently the applicant withdrew the application.

Upon the making of the current application the Board again adjourned the hearing of it until the Psychological Assessment was undertaken.

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 is serving a sentence of imprisonment due to his conduct in driving whilst disqualified, affected by illicit substances, and evading the police.  The evade was performed at high speed, in traffic and with the applicant’s vehicle at times travelling on the incorrect side of the road. The actions of the applicant were in breach of a suspended sentence.  That sentence had been imposed in respect of a number of matters including Burglary x9, Stealing x22, Motor vehicle Stealing x3, Computer related fraud x 6, Breach of bail requirements, Drive whilst not the holder of a driver licence x3, Unlawfully setting fire to property, Aggravated Burglary x9, Attempted Aggravated Burglary x3, Dangerous driving, Using controlled plant and/or its products, Drive a motor vehicle whilst a prescribed illicit drug is present in your blood,  Trespass x2 and Destroy property.

The applicant has an extensive and lengthy criminal record typically for matters of dishonesty, driving and drug offences.

Contributory to his offending behaviour is an addiction to illicit substances and his engagement with an anti-social cohort.  Indeed, for the applicant offending and drug use has been a lifestyle.  Attempts have been made in the past to alter that.  He has had the benefit of Court mandated diversion orders by the courts and probations orders but has failed to sustain compliance and engagement.  On the last occasion he was subject to a diversion order the applicant was able to demonstrate good compliance at the outset of the order however ultimately relapsed into drug use and reoffended.

The applicant does, however, demonstrate good insight into the drivers for his offending being the company he keeps and the substances he uses.  He states that he is motivated to make a change and make something of his life before it is too late.  This is perhaps demonstrated in the efforts he made at the front end of his last diversion order as referred to above.

He also is particularly affected by the death of one of the victims to his offending.  The death occurred whilst he was undertaking an armed robbery.  He pointed a taser at his victim who subsequently, and possibly consequently, died of a heart attack.

The desire for change is also demonstrated in the applicant’s engagement with his case management during his sentence.  He is described in this context as presenting as “very motivated to change” and as grasping “ideas and opportunities with enthusiasm”.  The challenge for him as raised by his planning officer is his capacity to remain on track when back in the community with the temptations and challenges that will present for him in that environment.

There appears, however significant supports available to him upon release on a parole order.  He is pursing NDIS support, has engaged with Therapeutic services within the prison and will engage with TAC upon release. He aims to engage in pro social activities, particularly pursing boxing training in a gym for fitness and stress release.

Whilst serving his sentence the applicant has engaged in internal offending and remains classified as maximum.  The offending behaviour includes matters of indecent language, failing to obey orders, assaulting a correctional officer, disorderly conduct, and unauthorised possession.  This behaviour occurred over the length of the sentence up to March/April of this year. Since this time, he has been able to demonstrate compliant behaviour and, overall, good behavioural reports. During this period the applicant has engaged in and completed the Resilience program.  The report from that program describes the applicant as motivated for change, demonstrating insight and a respectful and positive participant.

The applicant asserts that he has remained abstinent from illicit substances over the past 2 ½ years and wishes to remain so.  He has attended drug and alcohol counselling since late 2020 and has focused on learning techniques for avoiding relapse.

The Board also had the benefit of the report of Dr Hocking who has assessed the applicant as having worked hard to sustain prolonged abstinence from substance abuse but who will require significant support in the community to maintain his objective for a pro social lifestyle.

The psychological assessment undertaken at the request of the Board was provided by Dr Washington. She notes the presence of a mild intellectual disability with deficits in adaptive and functional behaviour and assesses that considering his history of substance abuse, mental health, and cognitive issues he is an increased risk to revert to offending.  Supervision under a parole order will necessarily need to be close with the applicant assisted in managing his tasks and appointments.  Positive factors are the support of the applicant’s mother, the TAC, Door of Hope, and engagement in sport.

The assessment of Community Corrections is that the applicant is a suitable candidate for a parole order believing that their supervision and other supports can assist him navigate a pro social, drug abstinent return to the community.

This applicant has challenges considering his cognitive capacity, past drug addiction, and anti-social relationships.  Nevertheless, he appears strongly determined to remain drug free and law abiding. There are significant supports available to him to assist him achieve the pro social lifestyle he is aiming for.  He has demonstrated an awareness into the need to trust and follow the guidance of those seeking to assist him on this path.  It is appropriate that he be afforded a parole order.

The Board’s determination

Parole is approved

Special conditions applied

• The applicant is to obtain and comply with a mental health plan

Paroled from 13 September 2021 - 27 May 2022