Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Mark Richard Nicholas

11 February 2022

Reasons for Decision

The Background:

Mark Richard NICHOLAS (“the applicant”) is serving a sentence of imprisonment imposed upon his conviction for Breach of Suspended Sentence, Aggravated Burglary, Stealing and Computer related fraud x 30.

The applicant became eligible to be considered for a parole order on the 14/12/2021.

The applicant appeared before the Parole Board initially on the 12/11/2021.  At that time the matter was adjourned sine die whilst there remained outstanding matters before the Supreme court.  Ultimately the application came back before the Board at its hearing on the 11/02/2022.  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 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:

The applicant has a criminal history mainly, however, for traffic and drug related matters.  Until his offending subject to this sentence he had not previously been convicted of matters of dishonesty.  The applicant’s drug use has been identified as a contributory factor to his offending behaviour.

The applicant has served his sentence quietly and compliantly.  There are no disciplinary issues during the custodial period and the applicant has achieved a minimum security classification.  He has maintained employment in education and as a carer.  He has obtained good work reports describing him as doing a “great job”, working responsibly and efficiently in circumstances where he “has a good amount of trust placed on him, which he has not misused to date”.  Aside from employment the applicant has also engaged in vocational courses during his sentence.  He has, however, been unable to access therapeutic programs remaining on the waiting list for Equips Foundation and Gottawanna courses.  The positive way the applicant has served his sentence is a credit to him particularly noting that during this period he suffered the death of his mother.

The applicant has suitable accommodation available for him over the parole period.  He has been assessed by Community Corrections as suitable for a Parole Order.  Confidence that the applicant has the capacity and intention to be compliant to the conditions of his order is gained by the fact that he remained compliantly on bail in the community for four years between charge and sentence on these matters. The applicant asserts that during this period he did not reoffend, removed himself from his anti-social peers and for two years prior to sentence ceased all drug use.

The applicant appears well advanced on the path to reform as demonstrated by the manner in which he has served his sentence.

The Board’s determination:

Parole is approved

Paroled from 21 February 2022 - 21 August 2022