Giving Victims a Voice in Parole Hearings: South Australia’s Experience

Published date01 July 2018
DOI10.1177/2516606918765488
Date01 July 2018
Subject MatterArticles
/tmp/tmp-18l3DfISh2mRRR/input Article
Giving Victims a Voice
Journal of Victimology
and Victim Justice
in Parole Hearings: South
1(1) 42–62
2018 National Law
Australia’s Experience
University Delhi
SAGE Publications
sagepub.in/home.nav
DOI: 10.1177/2516606918765488
http://journals.sagepub.com/home/vvj
Michael O’Connell AM APM1
Sarah Fletcher2

Abstract
Much of the limited research on parole has focused on the prisoner perspective.
There is a paucity of research on the victim perspective. This article draws on
quantitative and qualitative information attained during semi-structured inter-
views of co-victims of murders that were conducted by the Commissioner
for Victims’ Rights, South Australia. This information offers an insight into
co-victims’ views on whether murderers should be released on parole; co-victims’
safety concerns should murderers be released; and, co-victims’ views on the
parole process. The results confirm the importance of victim participation in
the parole process.
Keywords
Victim, co-victim, victims’ right, Commissioner for Victims’ Rights, parole, victim
participation
In most countries that inherited the British criminal justice system, parole evolved
from several measures. These measures include conditional pardon; the advent of
transportation, in particular that to penal colonies in Australia, and introduction of
the English and Irish practice known as ‘Ticket of Leave’. Elements of the latter
resemble modern parole. For example, the English Penal Servitude Act of the
mid-1850s authorized criminal courts to order transportation of criminals sentenced
to imprisonment for 14 years or more but also to specify the length of time prisoners
were required to serve before becoming eligible for release on ‘Ticket of Leave’.
The Irish Servitude Act of the same era also provided for the release of prisoners in
the final stage of their sentence on ‘Ticket of Leave’. While continuing their sentence
on leave, these prisoners were supervised by a designated inspectorate or the police.
1 Commissioner for Victims’ Rights, Government of South Australia.
2 Assistant Commissioner for Victims’ Rights, Government of South Australia.
Corresponding author:
Michael O’Connell AM APM, Commissioner for Victims’ Rights, Government of South Australia.
E-mail: michael.oconnell@sa.gov.au

O’Connell and Fletcher 43
In more recent times, prisoners advocates, penologists and others have promoted
the concept of parole. They have drawn on several rationales (including a humani-
tarian approach, a medical approach and a rehabilitative model) for advance parole.
They have in addition pointed to parole as a means for maintaining prison
discipline and a way to reduce prison overcrowding.1 Much of the recent debate
on parole has been pitched in the context of crime prevention, that is, prisoners on
parole are less likely to reoffend, at least while under supervision2; hence, in South
Australia, for example, public safety is now the paramount consideration in deter-
mining whether to release a murderer on parole.
Whether parole achieves its purposes remains contentious. In Australia ‘high
profile’ cases, such as the rape and murder of Jill Meagher by a ‘sexual predator’
who was on parole at the time of these crimes, have highlighted the disastrous
consequences when prisoners on parole fail.3 Countering the media hype and
stirred ‘moral panic’ is not easy. The empirical research is too scant and results too
equivocal to satisfy critics; yet, parole is embedded in modern sentencing practice.
It is, for the most part, portrayed as a prisoner’s right; and what is known tends to
be almost exclusively focused on the prisoner perspective. As a result, little empirical
research has focused on the victim perspective, such as the victims’ right to
participate in parole hearings and their attitudes to parole.
This article seeks to address such omission. For this purpose, it reports on the
results of semi-structured interviews conducted by Commissioner for Victims’
Rights and Assistant Commissioner for Victims’ Rights (here in referred to as
the Commissioner) who are tasked with preparing co-victims’ submissions to the
Parole Board of South Australia whenever a murderer applies for release
on parole. A co-victim is anyone (such as a spouse or partner, parent (including
foster parent or guardian, child, sibling, extended family member, friend, witness
or official, e.g., the police investigating officer)) who has been impacted by the
death of a person by homicide. The trauma these people experience may be pro-
found and prolonged. They may also endure a loss of a sense of safety and security.4
The possibility that the murderer of a loved one could be released on parole can
rekindle the effects of the crime on the co-victim or magnify the effects if they
have persisted. There is sparsity of research on co-victims involvement in the
parole process.5 Using quantitative data, the article reveals, among other findings,
the proportion of those bereaved by murder who did not oppose the prisoner’s
1 Gray Cavender, Parole: A Critical Analysis (Port Washington: Kennikat Press 1982).
2 Richard W. Evans, In Defence of Parole. Arena, Issue No. 126, 22–26 (Melbourne, VIC: Arena
Publications 2016).
3 Supra note 2 (For a United Kingdom example, see Ben Leapman, Home Affairs Correspondent. Reid:
Give victims of crime a say on parole (21 May 2006), available at http://www.telegraph.co.uk/news/
uknews/1518963/Reid-Give-victims-of-crime-a-say-on-parole.html (last visited 15 January 2018).
4 Basia Spalek, Crime Victims Theory, Policy and Practice (Basingstoke, Hampshire UK: Palgrave
Macmillan 2002).
5 Matt Black, Victim Submissions to Parole Boards: The Agenda for Research. Criminology Trends &
Issues in Crime and Criminal Justice, No.251 (Canberra: Australian Institute of Criminology 2003);
Brent L. Smith, Erin Watkins & Kathryn Morgan, The Effect of Victim Participation on Parole
Decisions: Results From a Southeastern State, 8(1), Criminal Justice Policy Rev., 57–74 (1997).
doi:10.1177/088740349700800103

44
Journal of Victimology and Victim Justice 1(1)
release on parole, who did oppose the prisoner’s release and who did not wish to
comment on whether the prisoner should be released or not. Using qualitative
data, the article gives an insight into the attitudes of those bereaved by murder on
both the Parole Board’s decision and the participation process.
It is widely known that a significant proportion of victims are dissatisfied with
the way they are treated throughout the criminal justice process. It is also widely
known that meaningful victim engagement and participation in decision-making
that affects them are crucial in reducing dissatisfaction feelings of marginalization
and exclusion.6 Giving victims a voice but also ensuring their voice is heard are
crucial for there to be procedural justice7.
Black8 proffers that a full model of victim participation in parole decisions is
premised on three rights: the right to be informed of an upcoming hearing; the
right to make submissions; and, the right to have their submission considered in
parole decision. These rights exist in South Australia and are integral to the parole
process for murderers seeking release.
Parole in South Australia
Every state and mainland territory in Australia has a slightly different parole law
and procedures; however, the rationales for parole are largely the same. As Evans9
(p. 6) says, ‘Parole is not a shortening of a sentence, it is part of the sentence. It is
a period towards the end of a sentence where a prisoner can, provided certain
conditions are met, be released back into the community’.
South Australia’s first parole laws came into operation in 1969 (refer
section 42).10 At that time the law assigned all responsibility for deciding prisoners’
release dates and conditions to the Parole Board. In other words, it took an ‘inde-
terminate approach’ unless the criminal court stated a ‘non-parole period’, which
the court rarely did at that time. The Parole Board could vary a date of release
according to the prisoner’s conduct and other factors; however, most often the
board approved the prisoner’s release on them becoming eligible for parole.
In 1983, amendments to the Prisons Act, 1936–83, which was repealed by the
Correctional Services Act 1982, removed the Parole Board’s power to decide
6 Joanna Shapland, Jon Willmore & Peter Duff, Victims in the Criminal Justice System (Aldershot,
England: Gower Publishing 1985); Julie Gardner, Victims and Criminal Justice. Series C, No. 5
(Adelaide, SA: Attorney-General’s Department 1990); Michael O’Connell, Victimology: An Introduction
to the Notion of Criminal Victimisation, in Key Issues in Criminal Justice 192–241 (2nd ed.) (R. Sarre &
J. Tomaino eds, Unley, SA, Australia: Australian Humanities Press 2005).
7 Malini S. Laxminarayan, The Heterogeneity of Crime Victims: Variations in Procedural and Outcome
Preferences (Nijmegen: Wolf Legal Publishers 2012); Michael O’Connell, Violence in Australia and Its
Victim: A Case for Victims’ Rights and Victim Assistance, in Preventing Violence In Australia: Policy,
Practice And Solutions 6–24. (A. Day & E. Fernandez eds, Leichhardt, NSW, Australia: The Federation
Press 2015a); Michael O’Connell, The Evolution of Victims’ Rights and Services in Australia, in Crime,
Victims And Policy International Contexts, Local Experiences 240–277 (D. Wilson & R....

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