Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Cheryl Ann Kendall

17 February 2023

Reasons for Decision

The Background:

Cheryl Ann KENDALL (“the applicant”) is serving a sentence of imprisonment imposed upon her conviction for use a computer with intention to defraud x3.

After the length of her sentence was increased on appeal the applicant became eligible for a parole order from the 23/02/2023.

The applicant appeared before the Parole Board at its hearing on the 17/02/2023.  On that occasion the applicant was present at the hearing and 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 was 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 continue to punish for the criminal wrongdoing.

Consideration:

This is the applicant’s first sentence of imprisonment.  Indeed prior to her conviction on these matters she did not have a criminal record. The applicant is now aged in her early fifties.  She has, aside for this offending, led a conventional and law-abiding life.  She is a wife and mother.  Also having led an exemplary and industrious life is the primary victim of her offending, a hard-working butcher who had spent his lengthy life carving out a business, serving his community, providing for his family and building a legacy.  All that was taken away from him by the conduct of the applicant.

The applicant offended as a product of a gambling addiction.  She occupied a position of trust in the victim’s business and abused that trust by stealing over a period a significant sum of money impacting not only the profitability of the business and the income of its owner, but also depriving its employees of their superannuation entitlements.  Her conduct was described at her sentencing as a “a sustained and quite sophisticated course of criminal

conduct which only came to a halt because it was discovered”.  The fact that her gambling reduced her to such deplorable and sustained conduct reflects the hold that her habit had on her, but also suggests a selfishness whereby the applicant has placed her perceived needs above all else.

The applicant’s gambling was a serious pursuit for her over a period of two years.  She would often attend to places to gamble multiple times a day.  She tried to hide her addiction by attending places where she would not run into people that may know her.  Her behaviour was fuelled by her poor mental health.  She experienced depression and anxiety and has now accessed psychological care in respect of these issues.

The applicant’s family remains supportive of her.  Her daughter has assisted in paying back a portion, albeit a small one of the money taken. Bankruptcy looms for the applicant however she asserts an intention to attempt to pay back what she has taken by instalments.  She asserts a regret for her offending.

The applicant has served her sentence without issues regarding her behaviour and compliance. She is rated at minimum security and described as polite and compliant.  She has worked during her sentence and her work has been of a high standard.

Suitable and prosocial accommodation is available to the applicant upon her release and she has been assessed by Community Corrections as suitable for supervision.  The applicant has confirmed that she will self-exclude from gambling venues.

The Board’s determination:

Parole is approved

Special conditions applied:

• To self-exclude from any gambling including not to hold any online betting account
• To have no contact directly or indirectly with the victim of her offending

Paroled from 27 February 2023 - 23 August 2024