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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clough

Details

AGLC: R v Clough [2014] SADC 84
Case: [2014] SADC 84
Decision Date: 16 May 2014

CaseChat Overview and Summary

The case of R v Clough involved the defendant, Clough, who was before the court for sentencing after being convicted of a criminal offence. The central issue in this case was the determination of the appropriate post-custodial orders for Clough, specifically concerning parole eligibility and potential release. The matter was heard in the Supreme Court of Victoria. The court had to consider the circumstances of the offence, Clough's criminal history, and the implications for public safety in determining the terms of his post-custodial orders.

The court needed to address several legal issues. Primarily, it had to assess the eligibility of Clough for parole and the conditions under which he might be released. The court also considered the principles governing the imposition of post-custodial orders, including the need to balance the rights of the offender with the safety and protection of the community. Additionally, the court had to review the statutory framework that applies to parole decisions in Victoria, including the relevant provisions of the Sentencing Act and the Parole Act.

The court found that Clough's criminal history and the nature of the offence warranted stringent conditions on his release. The judge emphasised the gravity of the offence and its impact on the community, which influenced the decision on parole eligibility. The court concluded that Clough would only be eligible for parole after serving a significant portion of his sentence and only under strict conditions designed to ensure public safety. The court outlined specific criteria that would need to be met before Clough could be considered for release, including satisfactory completion of rehabilitation programs and ongoing supervision. The detailed terms of the post-custodial orders were set out, ensuring that any release would be carefully monitored and controlled.

Orders