Power v The Queen - [2020] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
POWER v THE QUEEN
[2020] SASCFC 17
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Lovell)
11 March 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
Application to appeal against a non-parole period.
At the appeal hearing the Court granted permission to appeal, allowed the appeal, set aside the applicant’s non-parole period of 22 months and fixed a non-parole period of 13 months in lieu. These are the reasons for that decision.
On 8 September 2014, the applicant was ordered to serve a sentence of imprisonment of seven years, three months and three weeks with a non-parole period of three years and 10 months, backdated to 11 October 2013, for a large number of offences committed between June 2012 and May 2013.
The applicant was released on parole on 18 December 2017. Three days later he committed further offences, which cancelled his parole from that date, with three years, one month and 10 days of his sentence still to serve. In addition, the applicant was sentenced for the additional offending to imprisonment for four months and six days, to be served cumulatively on the cancelled unexpired period of parole as at 21 December 2017, the date the applicant was taken into custody. This resulted in a new head sentence of three years, five months and 16 days commencing 21 December 2017. A new non-parole period of five months was set.
On 19 November 2018, the applicant was again released on parole. On 24 March 2019, the applicant was returned to custody, following breaches of his parole conditions, with two years, four months and five days of his then head sentence still to serve. On 16 September 2019, the Judge allowed the applicant’s application for a new non-parole period to be set and fixed a new non-parole period of 22 months backdated to 24 March 2019.
The applicant appeals against the new non-parole period of 22 months on the following grounds:
1.      The learned Judge erred in fixing such a high non-parole period.
2.      The non-parole period was disproportionate to the breaches of parole and having regard to the head sentence remaining to be served.
3.      The non-parole period was too high and a lower non-parole period was needed for [the applicant] to get support on release on parole.
Held, per Nicholson J (Kourakis CJ and Lovell J agreeing), allowing the appeal:
1.      Permission to appeal granted on all grounds.
2.      The 22 month non-parole period was manifestly excessive and is set aside.
3.      A non-parole period of 13 months commencing 24 March 2019 is fixed in lieu.
Sentencing Act 2017 (SA) s 47; Criminal Law (Sentencing) Act 1988 (SA) s 32, referred to.
House v The King (1936) 55 CLR 499, applied.
R v Roberts (2016) 125 SASR 40, discussed.

POWER v THE QUEEN
[2020] SASCFC 17
Court of Criminal Appeal: Kourakis CJ, Nicholson and Lovell JJ

KOURAKIS CJ: I concur with the reasons given by Nicholson J for the orders made on 14 February 2020.
NICHOLSON J.
Introduction
On 24 March 2019, the applicant for permission to appeal[1] was returned to custody following his breach of parole conditions. He brought an application, pursuant to subsection 47 of the Sentencing Act 2017 (SA) for the fixing of a non-parole period. On 16 September 2019, a District Court Judge ordered a non-parole period of 22 months backdated to 24 March 2019. The applicant appealed to this Court and at the conclusion of the hearing, the appeal was allowed, the non-parole period of 22 months was set aside and a non-parole period of 13 months was fixed in lieu, commencing 24 March 2019. These are my reasons for joining in that decision.
[1] On 2 December 2019, all grounds of appeal relied on by the applicant for permission to appeal were referred by a Judge of this Court to the Court of Criminal Appeal.
Sentencing history
On 8 September 2014, the applicant was ordered to serve a total period of imprisonment of seven years, three months and three weeks with a non-parole period of three years and 10 months backdated to 11 October 2013. This total period was comprised of four separate sentences (all accumulated) for a large number of offences committed between June 2012 and May 2013. Three of the offences were very serious; two counts of aggravated robbery and driving to evade police.
The applicant was released on parole on 18 December 2017. However, he committed a number of minor offences together with the further offences of drive disqualified, unlawfully on premises and illegal interference on 21 December 2017. This offending had the effect of cancelling his parole from that date, with three years, one month and 10 days of his sentence still to serve. In addition, he was sentenced in the Magistrates Court for the additional offending to imprisonment for four months and six days, to be served cumulatively on the cancelled unexpired period of parole as at 21 December 2017 being the date the applicant was taken into custody. This resulted in a new head sentence of three years, five months and 16 days commencing 21 December 2017. The Magistrate imposed a new non-parole period of five months.
On 19 November 2018, after having served a further approximately 11 months, the applicant was again released on parole. However, he breached his parole conditions:
(i)on 31 January 2019, by leaving his place of accommodation, Frahn’s Farm, Monarto without permission;
(ii)on 1 February 2019, by refusing to cooperate and being evicted from the Lakalinjeri Tumbetin Waal program being conducted at Frahn’s Farm; and
(iii)on 6 February 2019, by failing to report for supervision as directed.
On 23 April 2019, he also attempted to pass objects to another cell and shouted offensive language at Corrections officers.
On 24 March 2019, the applicant was returned to custody following the execution of a Parole Board warrant with two years, four months and five days of his then head sentence still to serve as from that date.
On 16 September 2019, the Judge allowed the applicant’s application for a new non-parole period to be set. Her Honour fixed a new non-parole period of 22 months backdated to 24 March 2019. As a consequence, the applicant’s head sentence is due to expire in late July 2021 and the non-parole period of 22 months was due to expire in late January 2021.
Grounds of appeal
The grounds of appeal in the application for permission to appeal are as follows.
1.The learned Judge erred in fixing such a high non-parole period.
2.The non-parole period was disproportionate to the breaches of parole and having regard to the head sentence remaining to be served.
3.The non-parole period was too high and a lower non-parole period was needed for [the applicant] to get support on release on parole.
These grounds were supplemented with more particular complaints in the written and oral submissions before the Court. However, and whilst the applicant contended that the Judge had erred by not taking into account various relevant matters, the grounds can be seen as raising, and I joined in the orders of the Court on the basis that, the new non-parole period was manifestly excessive.
Further background
The applicant is an Aboriginal man, 27 years of age. In 2011, he was sentenced to imprisonment for nine months commencing 31 August 2011 at which time he was 19 years old. He completed that term of imprisonment in mid-2012 but was taken back into custody on 11 October 2013 with respect to further offending. He has been in custody since that date save for two short periods of parole amounting to just over four months. The two breaches of parole and the sentencing consequences for the applicant have been set out earlier.
The Magistrate who sentenced the applicant following the first breach of parole adopted a relatively lenient approach, particularly with respect to the fixing of a new non-parole period of five months. That was readily understandable given various of his Honour’s observations which placed the applicant’s new offending in context and addressed some of his difficult personal circumstances. His Honour’s remarks included the following.
[Y]ou are just 25 years of age so you are still a young man but from everything I have read and from what was said two weeks ago, for someone so young you have been through a great deal of trouble and a great deal of sadness during your life. Much more than most during their whole life. You have no contact with your father and very little with your mother, certainly in recent times and you went through a number of very serious traumas when you were just a young lad going into your early teenage years.
You were in a serious car accident when you were twelve, you tried to take your life when you were thirteen, and then at fourteen when playing with petrol you burnt yourself very severely and you spent months and months in hospital and had lots of skin grafts. It must have been a very, very painful experience.
You were in trouble with the police when you were in your teenage years and you started using various types of drugs and you spent times in custody both before you turned eighteen, as a youth, and since you have been an adult. These offences occurred against a background that is explained in the psychological report. The report tells us a number of things, as you explained as well last time with [your counsel].
You have a number of issues that you need help with: anxiety, depression and also low self-esteem and a lack of self-identity, which is talked about in the report.
You also have a significant intellectual disability; that does not mean that you are not responsible for what you do when you get in trouble with police, but it does mean you tend to make very impulsive decisions. These offences occurred in the way that you probably explained best of all two weeks ago. You said it was a “stupid” decision. You wanted to bring the car back to the place where you were staying at. You did not have the money to have it towed and so you decided to drive. You should not drive because you were under a disqualification which was imposed back in 2014. When you saw police and the police saw you, you did not stop; but the pursuit did not go for very long.
Then you ran off from the police and hid in the car. That is where the charge of illegal interference arises; and I accept that the reason for getting into the car was just to try and hide from the police; not to steal the car or steal from them.
That happened just three days after you were released on parole. You talked about your frustration about that because, you said in the report and two weeks ago; you tried to be a good prisoner and you got out on parole and that finished so soon after you getting in trouble.
The report says, and it is quite clear from everything that was talked about two weeks ago, when you go back out to the community you are going to need a lot of help and a lot of support, and unfortunately, you do not have as much family support as some others. You have got your sister and you want to live with your sister.
. . . .
Having said that, you are still a young man. The report says that and you said very clearly two weeks ago that you want to change and I am going to bear that in mind when imposing the penalty.
A real concern is that if, when you come out of custody next time, you do not make the right decisions and do not have enough support and you go back into custody again, that you might become what is sometimes called institutionalised, in other words you become more comfortable living in a gaol than living out in the community.
The Magistrate succinctly and accurately characterised the applicant’s very difficult background and personal circumstances. I add the following drawn from the report of the clinical psychologist, Dr Jack White, dated 5 September 2014 that had been available to the Magistrate. The applicant has an intellectual disability and falls within the bottom one per cent of the age equivalent population with an IQ of less than 70 and non-verbal abilities equivalent to those of an average seven year old. Upon psychometric testing, Dr White described the applicant as emotionally unstable, with elevated anger/hostility, impulsive and lacking discipline and organisation or planning capacities. As at 2014, Dr White found evidence of alcohol and illicit drug use disorders.
In a letter dated 10 September 2019 addressed to the Judge, the presiding member of the Parole Board made the following observations.
[The applicant] has spent the majority of his adult life in custody. He has been assessed as being at high risk of violent recidivism even though he completed the Violence Prevention Program prior to his release in 2017.
Substance abuse is a significant risk factor in relation to his offending.
Regrettably he does not appear to have significant family or community based support.
One of his conditions of release was that he undertake the Lakalinjeri Tumbetin Waal program which is a residential program specific to indigenous offenders. He left that program without permission on 31 January 2019 and was therefore evicted from the program on 1 February 2019. Thereafter his Community Corrections Officer was not aware of his residential address. He made contact with his Community Corrections Officer initially advising that he was staying with a friend but later advising that he was staying with his cousin at Elizabeth. He would not provide the address. A Parole Board warrant was issued to bring him back into custody on 5 February 2019. He was directed to attend for supervision on 5 February 2019 but failed to attend. The warrant was executed on 24 March 2019.
. . . .
He was interviewed by the Parole Board on 12 June 2019 when he said that leaving LTW without permission was “just a stupid mistake” for which he took full responsibility. He said that until he was arrested on the warrant he was at his sister’s house and he did not want to hand himself in because he wanted to spend time with his family. He acknowledged that the did not report and said that was because “he got kicked out of rehab”.
. . . .
[The applicant] is now 27 years of age and has a number of criminogenic factors with which he needs considerable help. His decision making is poor, he remains impulsive, he continues to have a substance abuse problem and his risk of re-offending as a result remains high.
His response to supervision has been poor in the past and he fails to appreciate that supervision is also there to provide a support for him.
On 15 July 2019 the Parole Board resolved to cancel his parole pursuant to Section 74 of the Correctional Services Act, 1982 leaving him liable to serve 2 years 4 months and 5 days balance of cancelled parole from 24 March 2019. He is due for release on 28 July 2021 unless a non-parole period is set by the court pursuant to Section 47(3) of the Sentencing Act, 2017. The Parole Board has no objection to a further non parole period being set but we would suggest that [the applicant] should take advantage of any intervention available to him whilst in custody which would better prepare him for release.
(Emphasis in original)
There is no doubt that the applicant has a relatively lengthy and serious offender history. However, most of his offending as a youth and as an adult has been motor vehicle offences with some dishonesty based offences. His offences of violence have been: an aggravated assault (no weapon) committed in 2011, an aggravated robbery committed in October 2012, an aggravated robbery committed in June 2013, and an assault police committed in February 2013. In March 2013, the applicant had only just turned 21. One of the aggravated robberies was committed in company and involved the victim being punched and hit with a stick before his wallet was stolen. The other was also committed in company; the victim was confronted and his bicycle and phone stolen.
The Judge’s approach to sentence
The Judge’s remarks on sentence were brief. Her Honour referred in part to the applicant’s sentencing background and made reference to his difficult personal circumstances. The essence of her Honour’s reasons for imposing a new non-parole period of 22 months was as follows.
I accept what [your counsel] tells me, that is, that you want to do better and I accept that it is probably in everybody's interests for you to be released into the community whilst under supervision, but your compliance with parole conditions has been poor.
I note you spent most of your adult life in custody. Drug abuse apparently remains a problem and you are said to have very limited family or community support. Your risk of reoffending, the report tells me, is high.
In my view, your best chance for success will be for you to remain in custody and take advantage of any programs available to you to give you some chance of remaining in the community once you are released.
Consideration
In R v Roberts,[2] this Court summarised, with reference to previous authority, the principles to be applied when setting a new non-parole period under subsection 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) (now subsection 47(3) of the Sentencing Act 2017 (SA)). It is sufficient to set out just some of that discussion.[3]
[2] [2016] SASCFC 41; (2016) 125 SASR 40 at [15]-[27].
[3]    At [21]-[22], [25], [27].
The purpose of fixing a non-parole period is to determine the optimum time when the prisoner will respond to parole and make the most of the opportunity it allows for rehabilitation after serving the minimum period necessary to meet the punitive and protective purposes of punishment. It is for that reason that relatively more weight is given to rehabilitation in fixing the non-parole period. The starting point for fixing a non-parole period is the length of the head sentence. It is a different discretionary exercise to fixing the head sentence, notwithstanding that it is informed largely by the same considerations. Nonetheless the discretion demands a balancing of competing sentencing objectives.
In R v Palmer, Kourakis CJ said:
The need for punishment and protection will generally result in non-parole periods of between one half and three quarters of the head sentence. Where in that range, or in special cases where outside that range, the non-parole period is fixed will depend on a realistic balancing of positive and negative indications of the offender’s prospects of rehabilitation…The safer course is to fix a lower or higher proportion by reference to the usual range depending on whether the offender has relatively poor or good indications for rehabilitation. That assessment must be based largely on factors like the offender’s antecedents, previous responses to community corrections orders, degree of contrition and demonstrated willingness and capacity to overcome criminogenic factors.
.  .  .  .
These authorities demonstrate that, subject to one additional factor, the principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence apply also to the exercise of the sentencing discretion in fixing a new non-parole period pursuant to s 32(3) after cancellation of a prisoner’s parole as a result of a breach of parole. The additional factor is that, in fixing a new non-parole period in these circumstances, it is necessary that the court also have regard to the gravity of the breaching conduct that has resulted in the cancellation of the parole.
.  .  .  .
As was observed by Kourakis J in Foley v Police, in R v Wilson the offender breached parole by breaching a designated condition. In those circumstances, it was understandable that particular attention needed to be given to the seriousness of the breach. The gravity of the breaching offence may inform both the need for deterrence and the prospect of rehabilitation in fixing a new non-parole period. At least two factors affecting the fixing of the non-parole period when parole has been breached suggest that it will be a higher proportion of the head sentence in those cases than otherwise. First, the breach itself will usually reflect adversely on the prospects of rehabilitation. Secondly, the sentencing court must have regard to the need to deter parolees from breaching their parole. However, these considerations are merely factors that must be weighed in the balance in the exercise of the sentencing discretion. This is consistent with the approach Stanley J took in R v Earley.
(Footnotes omitted)

The difficulty that confronted the Judge and this Court in this case is that, in all the circumstances appertaining to this applicant and his offending history, his prospects of successful rehabilitation without very substantial and continued support and assistance must be seen as problematic. This is a product of matters personal to the applicant and the fact that he has spent virtually all of his adult life (more than eight years) in custody. During this period he completed a violence prevention course but that appears to be all. Whilst the Parole Board and the Judge both made reference to taking advantage of such assistance as may be offered to him whilst he remains in custody, there was nothing before the Judge or this Court to permit a finding that he would be offered anything of substance in this respect during the period before the new non-parole period would expire (late January 2021). Experience suggests that this is unlikely.
There are two considerations arising from the circumstances of this case that, in combination, lead to a conclusion that the new non-parole period fixed was unreasonable in a House v The King[4] sense and therefore manifestly excessive.
[4] [1936] HCA 40; (1936) 55 CLR 499.
The first is that the non-parole period fixed is neither fish nor fowl. Six months on parole is likely to be quite inadequate to permit of any effective intensive supervision and assistance in the community. And one cannot be confident that any effective assistance leading to improved prospects for rehabilitation can or will be provided whilst the applicant remains in custody. The practical reality is that in July 2021 the applicant’s sentence will expire and he will be released into the community. Any such release might be conditional if the Attorney-General were to bring a successful application under the Criminal Law (High Risk) Offenders Act 2015 (SA). Even so, a reasonable period on parole, if successfully completed, would assist both parties and the Court in properly resolving any such application.
In any event, there are limits to that which another course or period of counselling whilst in the artificial custodial environment (if made available) might achieve for this applicant. Any sustained rehabilitation, if it is to occur, is likely to depend on the applicant’s response over time to assistance, counselling and supervision in the more challenging environment of the community. In my view, a shorter non-parole period would operate to meet sufficiently the punitive, protective and deterrent purposes of punishment and allow a longer and therefore potentially more effective time on parole.
The second consideration is this. The Magistrate, when setting a new non-parole period of five months, recognised that leniency was required if this applicant was going to be best assisted with his rehabilitation and institutionalisation avoided. The applicant breached his parole conditions by walking out and failing to complete the Frahn’s Farm program and by failing to report for supervision. He has given an explanation for this. He had received bad news from home and needed to get away on his own for a while. He wandered off for a short period from the area in which he was obliged to remain. Upon his eviction from Frahn’s Farm the very next day, he had to find somewhere to live. He had difficulty in doing so and he failed to report his address or addresses as required. He remained out of contact with corrections for about seven weeks before the Parole Board warrant was executed. His explanation and conduct was in keeping with his static personality features. He expressed contrition.
The applicant’s breaches of parole did not involve any further criminal offending much less violent offending or posing a risk of violence in the community. He should be punished for his failure to comply with parole conditions and both he and others need to be deterred from breaching parole conditions. However, increasing the non-parole period of five months, carefully arrived at by the Magistrate, to 22 months was quite disproportionate to the gravity of the breaches and unreasonably severe.
For these reasons, I joined in the orders of the Court. At the time the orders allowing the appeal, setting aside the 22 month non-parole period and fixing a 13 month period in lieu were made, nothing was said about the question of permission. It may have been implicit, but I would also make an order expressly granting permission to appeal on all grounds.
LOVELL J: I agree with the reasons of Nicholson J for the orders made on 14 February 2020.