Parole Board Decision

In the Matter of Corrections Act 1997

and

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

24 June 2022

Reasons for Decision

The Background:

Gavin Raymond McINTOSH (“the applicant”) is serving a sentence of imprisonment imposed upon his conviction for Aggravated Burglary, Committing an Unlawful Act Intending to Cause Bodily Harm x2, Stealing.

The applicant became eligible for a parole order from the 08/04/2022.

The application initially came before the Parole Board on the 8/04/22.  On that occasion the application was adjourned to enable the applicant to source suitable accommodation.  The application next came before the Board on the 24/06/22 at which time it was heard.  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 of 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 applicant has a poor history of compliance with the conditions of previous parole orders which has resulted in his return to the custodial environment initially through suspension of the parole order and then ultimately by its revocation.  Whilst he has consistently asserted a desire to effect a positive change in his life and is significantly motivated to do so by his family, he has nevertheless found compliance with parole conditions in the past too onerous.

In large part the applicant’s struggle with compliance has revolved around his lapses back to drug use when in the community setting.  This in turn has seen him on occasion use relatively sophisticated yet unsuccessful measures in an effort to avoid the detection of his drug use on random urinary drug screens.  The applicant has not, however, reverted to offending behaviour at these times.

When challenged about his behaviour the applicant has struggled to take responsibility but rather looks toward others to blame.  It is in this context that the Board now considers the application to release the applicant again under a parole order.  This is the applicant’s third application for parole under the current sentence.

At the hearing of the application the applicant’s difficulty in taking personal responsibility for his own actions was explored with him.  Whilst he has asserted in the past that he has been treated unfairly by the Board and Community Corrections because he is a male and that his previous parole officers have failed him by not “understanding his reintegration needs” and by not being sufficiently “nurturing” he has found his return to prison has enabled him to review his actions and performance on parole and recognise his shortcomings and take responsibility for the past failures.  He appears to have renewed determination to comply with the conditions of a parole order.

Clearly the biggest risk factor for future noncompliance and/or a return to offending behaviour lies in a relapse to drug use.  To this end the applicant asserts that he is committed to maintaining a drug free status and points to the motivation of his family and the recognition that he needs to open up to available supports as reasons why he will remain drug free.

It is significant, as previously mentioned, that the applicant has not returned to offending behaviour despite relapsing to drug use when in the community under the past parole orders.  This tends to support his assertion that he is determined to change his life becoming more positive and pro social.

The applicant has available to him supports in the community setting and suitable accommodation.  The challenge of creating sustained change can at times overwhelm.  This does not however mean that efforts should not continue.  The Board notes that the supervision period whilst the applicant is on parole will entail regular drug screening and assisting the applicant source appropriate providers and programs to address his drug dependency.

The Board’s determination:

Parole is approved

Special conditions applied:

• Mental health plan
• Non contact with certain named persons
• Electronic monitoring

Paroled from 5 July 2022 - 22 February 2023