R v Brady - [2015] SASC 115

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BRADY
[2015] SASC 115
Reasons for Ruling of The Honourable Justice Vanstone
6 August 2015
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
Application to fix a non-parole period - in 1992 the applicant was sentenced to life imprisonment and a non-parole period was set - the non-parole period was increased for further offending both before 1992 and while in custody - having served the non-parole period and been released the applicant committed a further serious offence for which he was sentenced to 6 years imprisonment - whether non-parole period should be imposed - whether s 32(5)(ab) of the Criminal Law Sentencing Act applies so as to require imposition of at least the mandatory minimum non-parole period of 20 years.
Held: the imposition of a non-parole period in these circumstances is governed by s 32(2) rather than s 32(5)(ab) and accordingly there is no obligation to fix the mandatory minimum - in the circumstances a non-parole period should be imposed - non-parole period of 10 years fixed, to commence today.
Criminal Law (Sentencing) Act 1988 (SA) s 32(2), s 32(3), s 32(5)(ab), referred to.
R v Marshal (Unreported, Supreme Court of South Australia, David J, 7 November 2008), applied.
R v Earley [2014] SASC 202, not followed.

R v BRADY
[2015] SASC 115
Criminal

VANSTONE J: Mr Brady applies for a non-parole period pursuant to s 32(3) Criminal Law (Sentencing) Act 1988.
Mr Brady pleaded guilty to murder on 27 October 1992 and was sentenced to life imprisonment, initially with a non-parole period of 14 years and 5 months. The term commenced on the day of sentence but the prisoner had already spent seven months in custody. Later that was reduced in accordance with the Truth in Sentencing legislation to 9 years, 4 months and 19 days. While he was serving that sentence the non-parole period was extended by 15 months on account of a serious assault which he had committed prior to the murder. There were also several assaults committed while serving his sentence, which increased the sentence.
Mr Brady first applied for release on parole at the end of 2002 but that application and a further one were refused. Eventually he was released on 30 January 2008. By that time he had served a total of approximately 15 years and 9 months referrable to the murder, the prior offending and to the assaults.
His response to parole was poor. There were two breaches of conditions which brought him back into custody for short periods.
On 19 April 2009 he committed an offence of aggravated causing harm with intent to cause harm. That offence was committed upon his de facto wife, using a knife. He was found guilty by a jury in the District Court of that offence. Judge Chivell sentenced Mr Brady to six years imprisonment and he was declared to be a serious repeat offender. Judge Chivell declined to set a non-parole period.
There is some dispute before me about Mr Brady’s more recent performance while in custody. In particular there is a dispute about whether he has applied to complete various programs and about whether he will be offered a position in those programs unless he has a non-parole period. I asked counsel for the appellant whether his client wished me to order a further report in an attempt to clarify those issues, but was told he did not. Those matters may be set aside as, in the view I take of the application, they are not of significance.
Of more immediate concern is the approach that I should take to the issue of setting a non-parole period. In R v Earley [2014] SASC 202 Justice Stanley dealt with an application which has something in common with the current one. His Honour was persuaded by submissions on both sides, which were united in saying that he was obliged by s 32(5)(ab) of the Criminal Law (Sentencing) Act 1988 (SA) to set a non-parole period of at least 20 years and to backdate it to the time of the commencement of Mr Earley’s original sentence. Understandably, that is what his Honour did. Stanley J was apparently not referred to the earlier decision of R v Marshal in which Justice David pointed to the illogicality of proceeding in that way and suggested that s 32(5)(2b) should not be interpreted as applying to persons who had already been sentenced to life imprisonment and had served a non-parole period. His Honour’s view was that the subsection should be seen to be relevant only to those who had never received a non-parole period for a life sentence. With great respect to Stanley J, I prefer the approach that David J took.
Section 32 of the Sentencing Act deals with the Court’s duty to set a non-parole period. Section 32(1) sets out the general obligation. Sections 32(2) and (3) address the situation applicable here. They provide:
32—Duty of court to fix or extend non-parole periods
(1)     …
(2)     Where the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non-parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
(my italics)
(3)     Where a prisoner is serving a sentence of imprisonment but is not subject to an existing non-parole period, the sentencing court may, subject to subsection (5), fix a non-parole period, on application by the prisoner or the presiding member of the Parole Board.
Section 32(4) allows for an application for a non-parole period in circumstances where the prisoner has already served a non-parole period for the sentence, or where a court has previously declined to set one. Section 32(5) stipulates qualifications to the above provisions. These include subsection (5)(ab) which both counsel rely on. It states:
(5)     The above provisions are subject to the following qualifications:
…
(ab)if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;
In my view s 32(2) rather than s 32(5)(ab) governs this situation. The new non-parole period is to be set having regard to the new sentence and “the balance” of the previous (life) sentence. It is not set in relation to the whole of the sentence of life imprisonment, as contemplated in s 32(5)(ab). I am reinforced in my view by the following. Were the Earley approach followed, the Court would face the unattractive prospect of setting at least a 20 year non-parole period in relation to a sentence for which a man had already served a (previously set) non-parole period. To backdate the new non-parole period to the date when the original one commenced would create a fiction, of which one vice would be that it would cover periods of time when the applicant was in the community on parole.
In my opinion, any non-parole period fixed here should be fixed in relation to what is seen to be the balance of the outstanding life sentence for murder (taking into account the non-parole period extensions on account of the other offences, totalling 17 months) and the sentence imposed in the District Court for aggravated causing harm with intent.
I turn to the question of whether a non-parole period should be imposed. There is a dispute about this matter and it is finely balanced. The prosecution suggests that no non-parole period should be set at this time, because of Mr Brady’s history of violent offending and his previous poor response to parole. Section 32(5)(c) allows such a course. This would leave open the possibility of future applications. On the other hand, Mr Brady asks for a non-parole period to be set at this time, contending that this will allow him to take his place in the queue for pre-release programs, which will help his chances of succeeding upon eventual release and give him certainty about the years ahead. He recognises that any non-parole period set will be significant.
In the past Mr Brady has repeatedly shown himself to be a dangerous man, particularly to those close to him. According to Mr Balfour, he has an anti-social personality disorder. He reacts poorly to the use of liquor and other drugs. His self control is poor. In my view the prospects for Mr Brady’s rehabilitation are not promising at this time. The fact that he has not been able to access programs is a factor in that. However, there will always be an element of danger in releasing him.
Having weighed the matter, I think it is appropriate to set a non-parole period. If I decline to do so and the Court is asked again in the next few years to set one, there is no cause for confidence that another judge will be in any better position than am I. On balance, I think it is fairer to the prisoner to do as he has requested and to give him some certainty about his future.
In assessing what non-parole period is appropriate, I have considered the time already spent in custody in relation to the life sentence. I have taken heed of the two non-parole period extensions in the 1990s. I have also had regard to the mandatory minimum non-parole period for murder which, since Mr Brady was originally sentenced, has been provided by Parliament as 20 years. Further, I am conscious of the fact that Judge Chivell considered that the declaration that Mr Brady is a serious repeat offender should be made and the Court of Criminal Appeal agreed with that assessment. Therefore the non-parole period fixed must include a period of four years and ten months in relation to the District Court sentence.
I shall fix the lowest period I can which meets the punitive, protective and rehabilitative purposes of punishment.
The period I have determined upon is one of 10 years. That non-parole period will commence to run today.