Parole – not if you’re innocent

Special National Investigation by Andrew L. Urban

It is reasonable to argue that those wrongfully convicted of a serious crime who are genuinely innocent are the most deserving of parole. The cruel irony is that they are the least likely to be eligible, if a) the victim’s body has not been found or b) if they do not admit to the crime (such as murder) because of their claim to be innocent. Does this meet society’s expectations? Is it just?

In SA, Derek Bromley, in his 37th year of incarceration, might well have been granted parole 13 years ago, but he maintains his innocence of the murder of which he was convicted. (See SA section below for details). The legal system offers avenues of appeal and convictions are overturned (see below), which is clear evidence that the system can and does get it wrong – probably more often that the public understands. Yet parole eligibility rules and practices often ignore that possibility, providing the innocently jailed no recourse. Is that morally justifiable in 2021?

The USA and the UK recognise the moral right of a convicted person to maintain that they were in fact wrongly convicted, notes legal academic Dr Bob Moles of Flinders University. In recent years, he points out, the USA has identified around 2,500 wrongful convictions. In that same time, the UK has identified around 450 wrongful convictions, including those of four people who had been hanged.

“Academic studies maintain that a conservative estimate of the rate of wrongful convictions in common-law jurisdictions would be around 2%.

“In Australia, that would amount to around 800 wrongful convictions based upon the size of the current prison population of over 41,000.

“It follows that it would not be irrational or unreasonable for a person convicted of a serious crime to maintain that they had been wrongly convicted.

“If a person is denied the opportunity to pursue their parole application because they have failed to show remorse or to take responsibility for the crime they are said to have committed, whilst they maintain that they have been wrongly convicted, that could be said to amount to a failure to recognise their constitutional and moral right to pursue a defence to the crime for which they have been convicted.
“In Australia for example, the following could have been refused if their parole eligibility relied on showing remorse / confession of guilt, after conviction:
Lindy Chamberlain
Edward Splatt
Andrew Mallard
Gordon Wood
Jeffrey Gilham
Scott Austic
David Eastman
John Button
Darryl Beamish
Mickelberg Brothers
Gene Gibson,
Roseanne Beckett
Douglas Harry Rendell
Fred McDermott
Colin Ross (hanged)
Farah Jama
‘Kipper Billy’ (1861)
Frank Button
Graham Stafford
Laurie Stevens
Darren Smith

These are just some of the people who maintained that they had been wrongly convicted and were eventually vindicated.”

As part of this Special Investigation, we asked all Commonwealth, State and Territory parole boards the same three questions (email sent Feb. 8, deadline for replies Feb. 19, 2021). Whether replies were received or not, we examined their public policy documents.

1 – is admission of guilt / showing remorse an essential prerequisite for granting of parole in your jurisdiction?

  1. a) in all cases or only specified cases?
  2. b) in cases where the offender maintains their innocence and therefore does not / can not disclose the location of the remains of a victim?

2 – if it is an essential prerequisite, are there any circumstances where such a prerequisite may be waived?

3 – in the past 5 years, how many applications for parole have been refused (if any) due to the applicant’s refusal to admit guilt and/or failure to show remorse?

NOTE: The ‘no body no parole’ legislation in most jurisdictions removes the possibility of parole for genuinely innocent prisoners convicted of murder, where the victim’s body has not been found.

*

SOUTH AUSTRALIA
(The SA Parole Board did not reply to our request.)
A prisoner is eligible for parole consideration upon the expiry of the non-parole period that has been fixed by the sentencing court.

The parole board considers applications for release on parole from:
Prisoners serving sentences of imprisonment of five years or more
Prisoners sentenced to imprisonment for offences that are excluded from automatic parole
Prisoners sentenced to life imprisonment
Special provisions apply to life sentenced prisoners as follows:
The ‘no body; no parole’ law: The board must not release a life sentenced prisoner on parole unless the board is satisfied that the prisoner has satisfactorily cooperated in the investigation of the offence.

Derek Bromley

Worst Case Scenario – Derek Bromley
In South Australia, Derek Bromley was convicted and sentenced in 1985. The alleged offence (murder) occurred in 1984. His long term friend, Robyn Milera, (with a Degree in Laws & Legal Practice, 2015) has made it her mission to support him in any way possible since learning of his situation in the early 1990s. (She publishes a blog dedicated to his case.)

“It is fair for us to say that Derek’s insisting on his innocence has been a significant problem and probably one of the major things the Parole Board has taken into consideration, but the Parole Board would not admit to giving it undue weight or considering it an impediment to release on parole.

“I tell you with total reliability on the PB documents that he has been proactive and incident free since the early 90s and since the first reasons for refusal in 2009 he has had only commendations for his conduct and progress.

“His original Non Parole Period was 32 years amended to 22 under Statutes Amendment (Truth in Sentencing) Act in 1994. He was eligible to apply for release on parole mid 2006. He made his first application in April 2007. Decisions of the board have been deferred many times and officially refused four times – most recently in 2017.

“Derek had done all things required of him and availed himself of every possible opportunity to demonstrate his readiness for release and has been denied parole on the basis of factors outside his control i.e., failure of the Correctional Services Department to provide resocialisation opportunities fit to satisfy the Parole Board.

“Since his sentencing in 1985, parole laws have changed many times and with each amendment to the law he has been put in a more difficult situation. In a real sense in a much more difficult situation than the sentencing judge had contemplated.”

Bromley and others in similar positions in jail present a challenge for a Parole Board. He has maintained his innocence for 37 years; he cannot then sincerely talk about his ‘insight’ into his offending or address how his ‘attitudes and motivations’ have changed for the better, indicators that give parole boards a green light for release.

Bromley has now stopped seeking parole. After his latest appeal three years ago was controversially rejected in a deeply troubling decision (see here), he is seeking the ultimate outcome: the High Court hearing his appeal and quashing his conviction. His legal team is preparing his case and expects to file it in the first quarter of 2021.

*

QUEENSLAND
1 – is admission of guilt / showing remorse an essential prerequisite for granting of parole in your jurisdiction?

a) in all cases or only specified cases?

“No. The admission of guilt showing of remorse is not strictly an essential prerequisite of granting parole. However in the criminal justice system it is the rule of the court process to determine the guilt or innocence of an accused person and it is not for the Parole Board Queensland to revise or reverse that assessment.

The ministerial guidelines issued to the Board under the Corrective Services Act 2006 hold that when deciding parole matters the Board should have regard to all relevant factors with community safety being it’s paramount concern.

Admissions of guilt or remorse are a relevant consideration for the board when determining parole matters.

b) in cases where the offender maintains their innocence and therefore does not / can not disclose the location of the remains of a victim?

Section 193A of the Correct Services Act 2006 (the no body no parole provision) applies to a parole application when the victims remains have not been located

2 – if it is an essential prerequisite, are there any circumstances where such a prerequisite may be waived?
There are no exceptions to the application of S193A of the Corrective Services Act 2006.

3 – in the past 5 years, how many applications for parole have been refused (if any) due to the applicant’s refusal to admit guilt and/or failure to show remorse?
This information is not collected by the board.”
*
Further to Question 3: Section 193A of the Corrective Services Act 2006 (the Act) provides that the Board must refuse to grant an application for parole where the prisoner is serving a period of imprisonment for a ‘homicide offence’ and

  • the body or remains of the victim of the offence have not been located; or
  • because of an act or omission of the prisoner or another person, part of the body or remains of the victim has not been located unless the Board is satisfied that the prisoner has cooperated satisfactorily in the investigation of the homicide offence to identify the victim’s location.

The rationale for this is that …such a measure is consistent with the retributive element of punishment. A punishment is lacking in retribution, and the community would be right to feel indignation, if a convicted killer could expect to be released without telling what he did with the body of the victim.

However, the policy is silent on cases where wrongfully convicted prisoners simply don’t know where the body is from a crime committed by someone else.

Preliminary grounds for refusal of parole in Queensland include:
“the prisoner’s insight into offending behaviour
the prisoner’s maintenance of innocence (if applicable)”

 CASE STUDY – From the Queensland Parole Board files:
A crocodile took the body?
An unusual example of cooperating satisfactorily in the investigation of the homicide offence to identify the victim’s location:
 
The applicant for parole killed the deceased on the morning of 27 January 2003, at first punching him and then beating him with a length of apparently heavy pipe. He then concealed the body and provided false explanations for the whereabouts of the deceased, before demonstrating remorse by contacting the police and making a full confession. In that confession he complained of provocative conduct by the deceased, causing the applicant to subject him to what proved to be a lethal assault. The applicant denied having intended to kill, and it appears from questions the jury asked that they were satisfied that the applicant had intended to cause the deceased grievous bodily harm.

On 9 March 2003 the applicant was arrested for the murder of the deceased. On this day the applicant participated in a record of interview with police and confessed to killing the deceased and to disposing of the deceased’s body and the weapon used to kill the deceased, namely a metal pipe, in a nearby river. The applicant provided police with a hand-drawn map indicating the area of the river where he placed the deceased’s body and the area of the river where he disposed of the metal pipe. The applicant then travelled with police and identified the area of the river where he placed the deceased’s body and threw the metal pipe.

Police divers searched the area and could not locate the deceased’s body or any remains, but did locate and retrieve the metal pipe. When asked why he waited a couple of weeks to initially report the victim as missing (before confessing), the applicant explained: “Well I thought the crocs would have eaten him.” Police: “You basing that on any information that you’ve – you’ve read or got from any else or —–?” “No. It’s just that I’ve seen a croc down there. I’ve seen three crocs but I don’t know if I’d seen the same croc twice. It was a fairly big one. I don’t know exactly how big but he looked a fair size.”

The application for parole was granted.

 

WESTERN AUSTRALIA
1 (a)       No, not in any cases, specifically.  An admission of guilt contained via plea of guilty will result in sentence reduction in all cases.  Remorse is implicit in that plea of guilty and remorse can be taken into account in parole release.  But it is not a pre-requisite.  I include remorse following conviction after a plea of not guilty and a trial.

1(b)        Generally in homicide cases, we have “no body, no parole” legislation.  This applies whether there was a plea of guilty, or a conviction following a plea of not guilty.  There are exceptions and we refer you to the Sentence Administration Act 2003 – general, but especially section 5A and section 66B (recent amendment).

  1. Remorse is not a pre-requisite for parole.
  2. The Board does not retain statistics, but the number would be single digit, if any, so far.

Under four years
In the case of sentences of four years or less, a prisoner is required to serve half that period in custody before being eligible to be released on parole. Parole must be considered prior to the prisoner’s earliest eligibility date.

More than four years
For sentences in excess of four years, a prisoner is eligible to be released on parole when they have served all but the last two years of their term.
*
VICTORIA
1 – is admission of guilt / showing remorse an essential prerequisite for granting of parole in your jurisdiction?          

a) in all cases or only specified cases?
Subject to (b) below, neither admission of guilt nor showing remorse are essential prerequisites for granting parole to an adult prisoner in Victoria. However, the Adult Parole Board has a statutory obligation to treat the safety and protection of the community as its paramount consideration. When determining a prisoner’s parole, the Board takes a range of factors into consideration. These include formal risk assessments, whether the prisoner has completed relevant programs and has suitable accommodation for release, the prisoner’s behaviour in prison, supports in the community, etc.

A prisoner’s lack of remorse may be a factor for the Board to consider because it can indicate other risks (for example, a prisoner’s lack of remorse about committing family violence may indicate a risk that they may commit family violence on parole). However, the Board is unlikely to deny parole to a prisoner who is otherwise suitable for parole, solely on the basis that they have not shown remorse for their offending.

b) in cases where the offender maintains their innocence and therefore does not / can not disclose the location of the remains of a victim?
The granting of parole to prisoners who are serving a sentence for certain fatal offences is governed by s.74AABA of the Corrections Act 1986, which requires the Board to be satisfied that the prisoner has cooperated satisfactorily in the investigation of the offence to identify the location, or the last known location, of the body or remains of the victim of the offence and the place where the body or remains of the victim of the offence may be found. Section 74AABA does not specifically require the Board to be satisfied that the prisoner has admitted guilt of, or has shown remorse for, the offence.

2 – if it is an essential prerequisite, are there any circumstances where such a prerequisite may be waived?
Not applicable as it is not an essential prerequisite.

3 – in the past 5 years, how many applications for parole have been refused (if any) due to the applicant’s refusal to admit guilt and/or failure to show remorse?
As explained above, refusal to admit guilt or absence of remorse do not themselves constitute reasons why the Board would deny parole.

If the length of the prison sentence is more than 24 months, the sentencing court must fix a non-parole period. The courts set a non-parole period for most prisoners who are sentenced to imprisonment for a maximum term of life.  However, in Victoria there is a small number of prisoners who have been sentenced to a term of imprisonment for life without a non-parole period.

During his or her time in prison, a prisoner’s risk, behaviour, and prospects of rehabilitation may change. The Board’s decision about whether to grant parole is based on information provided to it about the prisoner’s risk to the community at the time when the Board has to consider whether to release him or her back into the community.

*

TASMANIA     
1 – is admission of guilt / showing remorse an essential prerequisite for granting of parole in your jurisdiction? No

  1. a) in all cases or only specified cases? N/A
  2. b) in cases where the offender maintains their innocence and therefore does not / cannot disclose the location of the remains of a victim? N/A

2 – if it is an essential prerequisite, are there any circumstances where such a prerequisite may be waived? N/A

3 – in the past 5 years, how many applications for parole have been refused (if any) due to the applicant’s refusal to admit guilt and/or failure to show remorse?
Nil, where it has been a sole a reason for refusal.

*

NSW
(The NSW Parole Authority has not replied to our request.)
The NSW State Parole Authority orders the supervised conditional release of offenders from custody only when a sentence is greater than three years with a non-parole period.

The Serious Offenders Review Council advises the State Parole Authority concerning the release of Serious Offenders and can also provide reports about these offenders to the Supreme Court, the Attorney General and the Minister for Corrections.

Section 3 of the Crimes (Administration of Sentences) Act 1999 defines a serious offender. Approximately 7% of the NSW inmate population are serious offenders, and can broadly be described as those who are:
(a) serving a sentence for life,
(b) serving a sentence with a non-parole period of 12 years or a series of sentences of imprisonment where the combined terms of all of the sentences in the series means they would spent at least 12 years in custody,
(c) serving a sentence for murder, or
(d) is required to be managed as a serious offender in accordance with a decision of the sentencing court, the Parole Authority or the Commissioner.

Legislation prescribes that in the event that an offender is refused parole, they are required to wait 12 months before further consideration is given to possible release to parole. However, offenders can be considered for release to parole prior to this 12 month period if their situation fulfils the provisions of manifest injustice. Regulation 223 prescribes the circumstances which constitute manifest injustice. These include:
-The decision to refuse parole was made on the basis of false, misleading or irrelevant information
-It becomes apparent that a matter that was relevant to the decision to refuse parole is no longer relevant
-It becomes apparent that a matter that was relevant to the decision to refuse parole has been addressed in a way that warrants reconsideration of the decision or can be so addressed by imposing additional conditions on parole*

*

NORTHERN TERRITORY
(The NT Parole Board has not replied to our request.)
The Parole Board makes decisions based on written reports and submissions without the prisoner being present. Section 3G of the Parole Act gives the Chairperson the authority to require the attendance of a prisoner, however this is rarely used.When considering whether to release a prisoner on parole, the Parole Board considers each case on its own merits taking into account (emphasis added):the interests and safety of the community;
the rights of the victim;
the remarks of the sentencing Judge;
the needs of the prisoner;
the prisoner’s insight as to the causes of his or her offending behaviour; and
the prisoner’s attitude and motivation for change.

The latter two by implication and by combination make it difficult if not impossible for a prisoner who is genuinely innocent to be granted parole.

*

ACT
(The ACT Sentence Administration Board has not replied to our request.)
According the information available on the relevant website (Crimes (Sentence Administration) Act 2005 Part 7.2), the usual conditions apply to parole eligibility, especially “having regard to the principle that the public interest is of primary importance.” Also to be considered are:
* any relevant recommendation, observation and comment made by the sentencing court;
* any submission made, and concern expressed, to the board by a victim of the offender;
* the likely effect of the offender being paroled on any victim of the offender, and on the victim’s family, and, in particular, any concern, of which the board is aware, expressed by or for the victim, or the victim’s family, about the need for protection from violence or harassment by the offender;
AND
* Subsection (2) does not limit the matters the board may consider.

The combination of these criteria – such as remarks at sentencing, submissions by the victim, etc – present an insurmountable hurdle for innocent prisoners to be granted parole.

*

COMMONWEALTH
Parole decisions regarding federal offenders take into account a range of factors, including (but not limited to) the following matters that are enumerated in s 19ALA(1) of the Crimes Act 1914:

      • the need to protect the safety of the community
      • whether releasing the offender on parole is likely to assist the offender to adjust to lawful community life
      • the likelihood that the offender will comply with the conditions of the parole order
      • the offender’s conduct while serving his or her sentence
      • whether the offender has satisfactorily completed relevant programs during the custodial term
      • the nature and circumstances of the offence to which the offender’s sentence relates
      • any relevant comments made by the sentencing court
      • the offender’s criminal history
      • any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency, and
      • the behaviour of the prisoner when subject to any previous parole order or licence.
      • the matters listed in s19ALA(1) of the Crimes Act 1914 are not exclusive, and other matters (including guilt and remorse) may be taken into account.

*

REMARKS AT SENTENCING
Standard considerations for all parole boards include (as above): the nature of the offence, various reports on the applicant’s behaviour in prison, community safety and parole accommodation etc – AND the remarks of the sentencing judge. Such remarks may influence the parole board’s decision unfavourably against a prisoner who is genuinely innocent, even in jurisdictions without the ‘no body, no parole’ prerequisite. There are real risks in this.

For example, in the case of Sue Neill-Fraser (pleaded not guilty to murder, Tasmania, 2009) the trial judge (now Chief Justice Blow) rebuked her for dealing with the body of her victim in such a way as to make it impossible for police to locate the body. He even added three years to the base prison sentence as punishment, which the appeal court pointed out is impermissible, and the original sentence was shortened. Such remarks at sentencing, however, may influence a parole board. (NOTE: Sue Neill-Fraser has stated that she will not seek parole; she holds out for total exoneration. Her new appeal hearing will begin March 1, 2021 in the Supreme Court, Hobart.)

CONCLUSIONS
This investigation reports on the eligibility of Australian prisoners for parole who are genuinely innocent; those who have been wrongfully convicted, even though the legal system regards them as properly convicted of the crime with which they were charged. Our research shows that in almost all jurisdictions, eligibility for parole is determined on a list of very similar criteria, which may or may not officially include reference to the prisoner’s  admission of guilt and show of remorse; only Tasmania and WA categorically exclude that condition. (CONDITION 1). However, it is often taken into consideration, whether it is spelled out or not.

In most jurisdictions, there is a hard and fast ‘no body no parole‘ condition (CONDITION 2).

The primary objectives of the investigation are a) to inform the community of the facts about parole (given how little information is generally available on the topic publicly), and b) to encourage the legal systems in Australia’s various jurisdictions to recognise and engage with the potential injustice involved and seek to introduce a remedy.

*

THE CASE FOR REMOVAL OF CONDITIONS 1 & 2
Condition 1 As this investigation shows, admission of guilt is almost always (Tasmania and WA excepted) a consideration in the granting of parole for serious crimes such as murder. Logic dictates that a prisoner genuinely innocent of the crime – in their heart, as it were – is faced with a terrible choice: either make a false and self-debasing lie of guilt, or refuse to do so and remain incarcerated, with all the attendant loss of liberty, dignity and family embrace.

Then there is this: given the nature of human nature, as it were, it would not surprise if an expression of remorse might sometimes be offered to the parole board, more in opportunism than with the sincerity that is expected. In such a case, the condition becomes meaningless; the requirement may as well not exist.

Condition 2 It is said that A punishment is lacking in retribution, and the community would be right to feel indignation, if a convicted killer could expect to be released without telling what he did with the body of the victim. Competing with that compassionate rationale is another compassionate rationale, encapsulated by the famous formulation that it is better for ten guilty to go free than for one innocent to suffer. Applied in the parole context, that urges the law to favour the innocent. Further, it is arguable that it would be a rarity that murderers who did not reveal the location of their victims’ bodies at or before trial, knowing it shortens their prison sentence, would be likely to do so years later to help obtain parole. That rare possibility does not warrant retaining this condition of parole.

Acknowledgments and sincere thanks to the Parole Boards which have responded to our request for information.

 

 

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2 Responses to Parole – not if you’re innocent

  1. Robyn Milera says:

    I’m so disappointed that the SA Parole Board has not replied.

    But I’m not surprised. The conviction is under heavy shadows, and the sentencing remarks were brutal and politically charged, as is disdain for his continuing and lawful efforts to have his conviction overturned.

    The man that Derek Bromley is (and demonstrates that he is), is obscured by the induced bias of parole laws in relation to even the possibility of a wrongful conviction.

    It’s beyond cruel, for him and for his loved ones.

    The paramount consideration is supposed to be the safety and interests of the community. If the Parole Board would consider the weight of the ways in which Mr Bromley has voluntarily served the community, and enjoyed the trust of the institution where he is presently incarcerated and the emergency services sector of which he has been an active member for 7 years, it would be just and safe to release him if he had a mind to apply again for parole.

    He’s concentrating on the year ahead without that on his mind.

    Thank you for your research and support Andrew.

  2. Rosemary says:

    Thanks Andrew for such a thorough explanation of parole around Australia with so many examples. It is very courageous of Sue Neill-Fraser to not apply for parole as it will continue the stain of conviction on her if she did. Total exoneration is what she deserves. Hopefully the upcoming appeal will lead to that very soon.

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