Parole Board Decision

In the Matter of Corrections Act 1997

and

In the Matter of an application for Parole by Joshua John Pearce

31 March 2023

Reasons for Decision

The Background:

Joshua John Pearce (‘the applicant’) is currently serving a sentence of imprisonment of 3 years and 6 months, imposed upon conviction for charges of aggravated burglary, aggravated assault, recklessly discharging a firearm and several firearms related charges.

The applicant became eligible to be considered for parole on 4 April 2023.

The applicant appeared before the Board in respect of his application at the hearing on 31 March 2023. On that occasion the applicant 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 had been read to the applicant prior to his appearance at the hearing.

Registered victim:

There is a registered victim.

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:

The applicant has a long record of prior convictions including those related to his index offending involving the use of a firearm. This offending occurred in the context of what appeared to be an issue between the victim and the applicant relating to a female known to them both.  On the day of the offence, the applicant attended the victim’s home armed with a loaded firearm. The victim opened the door in response to a knock, believing it to be the female, but the applicant pushed the barrel of the firearm through the door, forced his way into the home while threatening to kill the victim. A struggle occurred with the applicant attempting to point the firearm at the victim and striking the victim on the head with the butt of the firearm while warning him to stay away from the female in question. At one point the firearm discharged and travelled through the wall into the adjoining unit where the victim’s uncle and 5-year-old daughter resided, although neither were injured.

At the time of his offending the applicant was using illicit drugs heavily. He has a lengthy history of poly-substance abuse which commenced after a motor bike accident in his early twenties, when he developed a dependency for morphine prescribed for pain relief. Additionally, he suffered an acquired brain injury which affected his impulse control and cognitive functioning.  He continued to use other substances including cocaine, amphetamine and opiate medication and attributes all his offending behaviour to his drug use.

On sentencing the Court noted the seriousness of the crimes given the risk of injury or death to the victim due to the discharge of the firearm during the struggle.  The Court did note however, the applicant’s attempts to address his offending while incarcerated and information provided indicates that the applicant has continued to address his offending behaviour and illicit substance abuse during his custodial sentence.

He has engaged in alcohol and drug counselling and a report outlines the applicant’s high level engagement and participation, being open and frank about his past lifestyle, and working hard to identify possible barriers he may face to avoid relapse into offending and substance abuse in the future.  It states the applicant has been able to identify the impact his drug use and criminal conduct has had on both his family and community and has good insight into the challenges he will face on return to the community.

The applicant’s insight into his offending and the challenges he faces was apparent during his interview by the Board. He stated he had struggled in the past to accept responsibility for his offending but had come to understand what occurred was totally unacceptable behaviour during what he described as the “longest sentence by a long stretch”. He reflected that prior to his incarceration, he had been in stable housing and had remained in the community for some months without significant offending.

A range of factors exist for the applicant that suggest prospects for rehabilitation and a capacity and motivation to change the trajectory of his past offending.  He has a good industrial history, having worked in the fishing and building industry.  During his incarceration he has been consistently employed and reports that employment is a strong protective factor for him, hoping to secure employment as soon as possible on release.

The applicant has also demonstrated good compliance in the prison environment, attaining a minimum classification and accommodation in the O’Hara Cottages.  The applicant is in a privileged position as he has been a full-time student while housed in O’Hara, and has completed a Certificate II in Workplace Skills and is undertaking a Certificate III in Business which he hopes to complete upon release.  Case notes reflect the applicant is polite, engaged and works hard when undertaking employment duties outside study.

The applicant has suitable accommodation, prosocial friends and has recently reconnected with family members who will provide additional support in the community.

While the offence for which the applicant is imprisoned is of a serious nature, he has been able to recognise the impact on the victim and others of his offending and has expressed remorse for what he described as “unacceptable behaviour”.

He has made a concerted effort to address his offending, engaging in programs and undertaking training to increase prospects of gainful and positive employment in the community. He is motivated to engage with his doctor and a psychologist to assess and develop strategies for his cognitive and behaviour functioning associated with his acquired brain injury.

Based on these factors, Community Corrections have assessed the applicant as suitable for a parole order, and the Board agrees with this assessment.

The Board’s determination:

Parole Granted

Special conditions applied:

• Be assessed for a Mental health plan and engage with counselling as recommended by the plan.
• Not contact directly or indirectly named registered victim.
• Submit to electronic monitoring.

Paroled from 17 April 2023 - 4 October 2024