Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Kylie Maree Herlihy

6 January 2023

Reasons for Decision

The Background:

Kylie Maree Herlihy (‘the applicant’) is currently serving a sentence of imprisonment imposed upon conviction on charges of aggravated armed robbery, aggravated burglary and stealing.

While the applicant became eligible to be considered for parole on 23 November 2021, due to ongoing difficulty in being able to secure appropriate accommodation, her application for parole has had to be adjourned several times in the last 12 months.

The applicant ultimately appeared before the Board in respect of her application at the hearing on 6 January 2023.

On that occasion the applicant was invited to provide any information she had in support of her application and made herself available for questioning by the Board.

A pre-parole report prepared on behalf of the Board had been read to the applicant prior to her 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 punish for the criminal wrongdoing.

Consideration:

This applicant’s personal history is unfortunately a difficult one, having suffered physical and sexual abuse and neglect as a child, and entering state care at age of 11.  Her teenage years lacked stability, living in many different foster homes, and suffering further abuse during her time in foster care. The applicant’s long-term relationship of 17 years was violent and abusive, and she had the first of eight children from that relationship at the young age of 17. While several of the applicant’s children are now adults, the younger children remain in the care of the State and due to her incarceration contact with them has been very limited.

The applicant’s addiction to methylamphetamine developed during her long-term relationship. The applicant has also struggled with problematic use of alcohol, and information provided suggests the applicant has used both drugs and alcohol as a coping mechanism to manage emotional pain.

Her pattern of offending has involved both crimes of dishonesty and violence however the current offending is the most serious. The applicant and her co-offenders invaded the home of an elderly man on two separate occasions and on the second occasion, participated in a pattern of behaviour that involved the victim being seriously assaulted and money and prescription medication being stolen.

During her custodial sentence the applicant appears to have struggled with compliance and aggressive behaviour, and had 24 internal offences recorded, involving assaults on inmates and correctional staff, and drug – related offences including use of methamphetamine while in custody. The applicant has been housed in the maximum or medium security for a large part of her sentence.

Notably, however, there appears to be a change in the applicant’s attitude and behaviour in the last 12 months since her application was adjourned in February 2022 due to lack of accommodation.  In August 2022, the applicant attained a minimum classification and since that time has recorded no internal offending, and indeed case notes outline a positive change in behaviour and good work standards in her role as head gardener within the Mary Hutchinson Women’s prison.   Related to this role, the applicant commenced a Certificate II in Horticulture which she is hoping to continue and complete on release.

Throughout her custodial sentence the applicant has also participated in alcohol and drug counselling and Dialectical Behaviour Therapy (DBT) to assist her in controlling and managing her emotions. On interview by the Board, the applicant outlined the strategies she has used to manage her emotions and behaviour recently and appear realistic in her goals and plans if she were to be released into the community on parole.

Additionally, the applicant now has suitable accommodation. In the pre-parole report prepared for the Board, Community Corrections also note the applicant has demonstrated a change in attitude and compliance within the prison system and has engaged with external support services including Beyond the Wire, Alcohol and Drug Services, speech therapy and a counselling service to address her history of complex trauma and abuse.

Based on these factors although Community Corrections have assessed the applicant as requiring a high level of intervention, they have assessed her as now suitable for parole.

The Board agrees with this assessment. The applicant’s main risk for reoffending is clearly relapse into illicit drug use. To appropriately manage that risk, in addition to the strict conditions of a parole order, the imposition of electronic monitoring will provide appropriate monitoring and accountability to assist the applicant in maintaining compliance and avoid relapse into pro-criminal behaviour.

The Board’s determination:

Parole Granted

Special conditions applied:

• Must submit to electronic monitoring.

Parole from 16 January 2023 - 8 January 2024