Porter v The Queen

[2009] SASC 393

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

PORTER v R

[2009] SASC 393

Judgment of The Honourable Justice Nyland

22 December 2009

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - OTHER MATTERS

Application to fix non-parole period - parole cancelled for breach of designated conditions - applicant not a good candidate for parole - sentence about to expire - non-parole period fixed to provide for period of supervision in community before sentence expires.

HELD:  Non parole period fixed - community and defendant best served by the fixing of a new non-parole period.

Criminal Law Sentencing Act 1988 s 32(3); Correctional Services Act 1982 s 73, referred to.

PORTER v R
[2009] SASC 393

1. NYLAND J:          Michael Everett Porter (the defendant) has made an application to the court pursuant to s 32(3) Criminal Law (Sentencing) Act 1988 for the fixing of a non-parole period. The defendant is currently serving a sentence of one year, five months and 13 days pursuant to s 73 of the Correctional Services Act 1982. He has not had a non-parole period fixed in respect of that sentence. The sentence commenced on 11 July 2009. The defendant’s current release date is therefore 23 December 2010.

2. The defendant has a lengthy criminal history, as set out in the Offender History Report provided by counsel for the Director of Public Prosecution in the course of this application. Of relevance to the present matter however is the sentence imposed in this court on 3 February 1999 with respect to the crime of manslaughter. On that date the defendant was sentenced to be imprisoned for 11 years, 4 months and 26 days with a non-parole period of seven years and six months, to commence 3 February 1999. That sentence included an unexpired period of parole and a revoked suspended sentence. In due course the defendant was released on parole but on 20 February 2007 the Parole Board found that on 4 October 2006 the defendant breached a designated condition of parole, namely that he abstain from alcohol. His parole was cancelled and he was ordered to serve three years five months and 13 days balance of parole, pursuant to s 73 Correctional Services Act 1982.

3. On 22 March 2007 the defendant was sentenced in the Port Adelaide Magistrates Court with respect to two counts of aggravated assault on police, one charge of resisting police and one charge of giving false personal details.  A total sentence of three months imprisonment was imposed to which was added the balance of unexpired parole.  That left the defendant with a head sentence of three years, eight months and 14 days.  A non-parole period of two years two months and 14 days was fixed to commence from 22 March 2007.

4. On 4 June 2009 the defendant was again released on parole.  It appears that on 2 July 2009 the defendant was stabbed in the chest by a former girlfriend and admitted to the Royal Adelaide Hospital.  The defendant failed to advise his Community Corrections Officer of this matter until enquiries were made concerning his failure to attend a violence prevention program on 8 July 2009.  The Emergency Registrar at the Royal Adelaide Hospital confirmed that the defendant had been admitted to hospital with a superficial wound, but he was released after eight hours observation.  As a result, the Parole Board considered that the defendant should not return to the address at which he had been living with his former partner. 

5. On 10 July 2009, the Parole Board issued a warrant for the arrest of the defendant for the breach of a number of designated conditions relating to his release on parole.

6. On 27 August 2009 the defendant was interviewed by the Parole Board, who found that he had breached his residence condition and his illegal drugs condition.  Further, they found that he had breached two designated conditions by failing to attend the Violence Prevention Program and using alcohol. 

7. The Parole Board has provided a report to the court dated 23 November 2009 in which the Presiding Member indicates that the defendant was a discretionary release, having committed a very serious offence in the past.  The report refers to the defendant’s significant criminal history, including offences of violence and his long history of substance abuse involving alcohol and illegal drugs.  The Presiding Member comments:

   Alcohol and illegal drugs clearly remain a significant issue for Mr Porter.  He continues to have issues with violence.  Having been given an opportunity on parole he breached his parole very early on in his release and in ways that indicate that his continued compliance with any further parole is not likely.

   Mr Porter has a long history of offending, violence, substance abuse and failure to comply with parole conditions.

   Mr Porter is someone who needs a great deal of intervention before he is suitable for release.  His history of compliance is such that he is not a good candidate for further parole in the short term.

8. In the course of submissions with respect to this application I was provided with a letter from Mr Brian Hier, who I understand is regarded by the defendant as his step-father.  Mr Hier says that he is willing to open his house to the defendant and to help and provide assistance to him.  I was also informed that the defendant wishes to renew a relationship with a Ms Pitt, who has known him for a period of about 12 years.  The defendant is the father of her 11-year old son, who was born about the time that the defendant was sentenced with the respect to the charge of manslaughter.  Ms Pitt has also provided a letter of support from Ms Pitt.  Ms Pitt currently resides in Queensland, but is proposing to return to Adelaide to live with the defendant and she says she is anxious to assist him in his re-introduction into mainstream society. 

9. The defendant also submitted a letter to me in support of his application for release on parole.  In that letter he explains that Mr Hier is ill with cancer and other related health problems.  The defendant says he is anxious to be able to be released as soon as possible to assist in caring for Mr Hier.  In the event of being released, he proposes that he will live with Mr Hier and in the short term anticipates that Ms Pitt and his son will also reside with him. 

10. Notwithstanding the confidence expressed by Mr Hier and Ms Pitt as to their ability to assist the defendant, I have considerable misgivings about releasing the defendant from prison and I agree with the opinion expressed by the Parole Board that the defendant is not a good candidate for parole.  It is however of concern that the defendant’s sentence will expire at the end of next year, which means that in the absence of fixing a non-parole period the defendant will leave custody and return to the community without any assistance or support at all to re-integrate into the community.  I take some comfort from the fact that at least on this occasion, the defendant did not commit any further crimes while on parole. 

11. Taking into account all of the circumstances, I have finally decided that the community and the defendant will be best served by fixing a new non-parole period which will provide for a period of supervision in the community before the expiration of the defendant’s sentence.  I therefore fix a new non-parole period of 10 months, which will commence from 10 July 2009.