R v Clough

[2014] SADC 84

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v CLOUGH

[2014] SADC 84

Reasons for Decision of His Honour Judge Tilmouth

16 May 2014

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - ELIGIBILITY AND RELEASE

Consideration as to whether new parole period should be set.

Correctional Services Act 1982 (SA) s 74; Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(c) and s 32(5)(c)(iii), referred to.
R v Glynn [2000] SASC 323; R v Beauregard-Smith (2001) 79 SASR 408; R v James (1990) 158 LSJS 7; R v Wilson (1999) 203 LSJS 459, applied.

R v CLOUGH
[2014] SADC 84

1. The defendant Richard Clough is before the court on his application to fix a non-parole period.  The application comes about in this way.

2. On 5 July 2011 another Judge of this Court sentenced him to an immediate term of imprisonment of one year and 11 months, for an aggravated offence of serious criminal trespass in a place of residence and assault.  In addition the Judge activated previously suspended sentences of 18 months for an earlier aggravated serious criminal trespass and theft committed on 9 February 2008, and four months for two summary offences and two aggravated assaults committed in November 2009.  The aggregate head sentence was therefore three years and two months, upon which the Judge set a non-parole period of 19 months.  The combined sentence rendered him eligible for release on parole by 4 February 2013.

3. The trespass in a residence offence consisted of Mr Clough confronting a man in his house and throwing punches at him.  Whilst serving the sentence he completed two phases of an intensive ‘Making Changes Program’ at the Port Augusta Prison.

4. As a result of what the Parole Board described as a ‘comprehensive and insightful application’, parole was granted to him on 4 February 2013.  He was paroled to reside with his mother in Whyalla.  However on 9 March 2013 he returned a positive urine analysis for amphetamine, and a further test on 3 May 2013 again returned positive for amphetamine.  He was therefore placed under closer supervision by the Parole Board.

5. However on 10 May 2013 he was arrested at Westland Shopping Centre in Whyalla for possessing an offensive weapon, disorderly behaviour and resisting arrest.  He admitted being under the heavy influence of alcohol on this occasion.  He reported as feeling lost and depressed and had resorted to drugs and alcohol to cope.  He was ordered to serve 50 hours of community service work by the Magistrates Court on 24 June 2013, as a result of these offences.

6. His general practitioner had prescribed anti-depressant medication and entered him into a Mental Health Care Plan for psychological intervention.  It appears that these problems derive from the death of his twin sister in front of him when they were just fifteen years old.  In the meantime he continued to be reporting in a fashion described as ‘exemplary’.  He was considered to engage well with supervision, as polite and to be making significant progress with both his counsellor and psychologist.  His Community Corrections Officer continued to remain supportive of him remaining in the community.

7. However on 11 June 2013 police were called to attend an altercation between him, his mother and his step-father, which sprang from a request to leave the residence.

8. In a summons interview of 25 July 2013 the Parole Board intimated as an alternative to cancellation, its preparedness to impose community service work.  On resuming residence with his younger brother, the situation proved somewhat problematic, ultimately leading to an altercation resulting in a charge of damaging a motor vehicle, committed once again under the influence of alcohol.  An interim intervention order was issued requiring him to live with his father in Port Lincoln, however there were continuing difficulties in complying with parole, culminating in the issue of a warrant for his arrest following an altercation with police in a grossly intoxicated state at an Hotel in Port Lincoln on 6 October 2013.

9. The Board cancelled his parole pursuant to s 74 of the Correctional Services Act 1982 (SA), thus rendering him liable to serve one year, one month and seven days of the balance of the sentence, from 10 October 2013. It is anticipated his sentence will expire on 17 November 2014. The Board has reported favourably towards his application but has pointed out that ‘he remained with a significant criminogenic need with respect to consumption of alcohol’.

10. Mr Clough is now presently in the Port Lincoln Prison working six days a week in the laundry and he enjoys a low security rating.  He deposes that he continues to have the support of his father who works in a hardware store in Port Lincoln, and with whom he proposes to live.

11. It is obvious that Mr Clough regularly comes into conflict with the law when he drinks alcohol to excess.  Although most of his offences are not all that serious in relative terms, the repetition demonstrates an incapacity to control himself when under the influence of alcohol.  His counsel put his repeated offending down to immaturity and submitted to the court that now aged 26, he has greater insight into his offending and better understands the obligation of parole and that he is more responsible.  As he was returned to custody on 10 October 2013, at the time submissions were made on his behalf in late April 2014, he had been in prison for about a further six months.  The court ordered a pre-sentence report so as to consider whether he was showing the signs of maturity and the capacity to keep out of trouble, posited on his behalf.

12. It is apparent that the above described offences stem from the abuse of alcohol, which renders him less capable of exercising self-control and managing his volatile anger.  His excessive drinking relates to unresolved grief over the death of his sister and his parent’s separation.  In a recent interview with Corrections he expressed that he now has a change of attitude.  It is accepted that he ‘certainly demonstrates a readiness and motivation to change and willingness to engage supervision’, but that ‘his behaviour does not match his attitude’.

13. The application for release on parole pursuant to s 32(5)(c) of the Criminal Law (Sentencing) Act 1988 (SA), requires the court to fix a non-parole period, unless that would be inappropriate under s 32(5)(c): R v Glynn,[1] and R v Beauregard-Smith.[2] The application is opposed by the DPP on account of his ‘behaviour … during … release on parole’: s 32(5)(c)(iii). There is some force in this submission, as the above record indicates.

    [1] [2000] SASC 323, [14]-[15].

    [2] (2001) 79 SASR 408, [16].

14. Given that he can respond to supervision when he wants to, and given that he expresses a more mature desire to keep out of trouble and that the Community would be better served and protected if he were released under supervision, it is appropriate to fix a non-parole period so as to phase his release back into the Community.

15. As noted, his head sentence expires on 17 November 2014.  In all the circumstances it is appropriate to fix a non-parole period of 9 months to commence from the date he was returned to custody upon revocation of parole, namely 10 October 2013: R v James,[3] R v Wilson,[4] and R v Glynn.[5]

    [3] (1990) 158 LSJS 7, 9.

    [4] (1999) 203 LSJS 459, [25].

    [5] [2000] SASC 323, [42].