R v Earley - [2014] SASC 202

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v EARLEY
[2014] SASC 202
Judgment of The Honourable Justice Stanley
24 December 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD
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 - DISCRETION TO REFRAIN FROM FIXING
Application to fix a non-parole period.
On 25 June 1989 the applicant killed Mark Charles Scott. He was convicted of the offence of murder and sentenced to life imprisonment with a non-parole period of 18 years. That sentence commenced on 25 October 1989. The applicant’s non-parole period was extended by four years in August 1992 when he pleaded guilty to a charge of wounding with intent to do grievous bodily harm. On 31 July 1994 the applicant’s non-parole period was adjusted pursuant to the Statutes Amendment (Truth in Sentencing) Act 1994 (SA), to a period of 14 years, eight months and five days. The adjusted non-parole period commenced from the date the applicant was taken into custody, namely 25 October 1989. The applicant became eligible for parole on 29 June 2004.
Between 2004 and 2012 the applicant made numerous applications seeking his release on parole. On 14 February 2013 the Governor in Council approved the applicant’s release on parole. He was conditionally released to parole on 15 May 2013 for a period of 10 years. The conditions of his release were, inter alia, that he not commit any offence, not possess any offensive weapon and abstain from alcohol.
Prior to the applicant’s release on parole, he spent a period of eight weeks undertaking a pre-release program.
Upon release, the applicant became overwhelmed by the outside world and found it difficult to adjust to life in the community. In late August 2013 the applicant breached parole by committing offences of carrying a visible offensive weapon and disorderly conduct. The applicant pleaded guilty to the charges on the first return date and a magistrate entered a conviction without further penalty.
On 6 September 2013 the Parole Board cancelled the applicant’s parole pursuant to s 74 of the Correctional Services Act 1982 (SA). He remains liable to serve the balance of his sentence for murder, namely, life imprisonment.
The applicant comes to this Court seeking an order fixing a non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA).
Held (allowing the application and fixing a non-parole period):
1. The fixing of a new non-parole period should be approached afresh (at [17] - [21]).
2. Justice in this case requires that the non-parole period be backdated to the time the applicant was first taken into custody in relation to the murder charge (at [39]).
3. A non-parole period of 26 years is fixed. The non-parole period is backdated to commence on 25 October 1989 (at [41]).
Criminal Law (Sentencing) Act 1988 (SA) s 32; Statutes Amendment (Truth in Sentencing) Act 1994 (SA); Correctional Services Act 1982 (SA) s 70, s 74; Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA), referred to.
Bromley v Police (1999) 202 LSJS 91; R v James (1990) 158 LSJS 7; R v B, FG (2013) 115 SASR 499; R v Beauregard-Smith (2001) 79 SASR 408; R v Glynn [2000] SASC 323; R v Greenwood [2000] SASC 204; R v Stewart (1984) 35 SASR 477; R v Miller (2000) 76 SASR 151; R v Von Einem (1985) 38 SASR 207; Federici v Police [1999] SASC 95; R v Ashdown (1994) 72 A Crim R 63; R v Tytler [2002] SASC 246; R v Ironside (2009) 104 SASR 54; R v Wilson (1999) 203 LSJS 459; R v Tilley [2010] SASCFC 73, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"application to fix a non-parole period' and 'mandatory minimum non-parole period"

R v EARLEY
[2014] SASC 202
Criminal Application
STANLEY J:
Introduction

This is an application to fix a non-parole period in relation to a sentence of life imprisonment imposed upon the applicant for the offence of murder. The application is made pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act).
Background
On 25 June 1989 the applicant killed Mark Charles Scott. He was convicted of the offence of murder and, in February 1991, a Judge of this Court sentenced him to life imprisonment with a non-parole period of 18 years. That sentence was backdated to commence on 25 October 1989. The applicant’s non-parole period was extended by four years in August 1992 when he pleaded guilty to a charge of wounding with intent to do grievous bodily harm. This was the result of an assault on a fellow prisoner, in company with another.
On 31 July 1994 the applicant’s non-parole period was adjusted pursuant to the Statutes Amendment (Truth in Sentencing) Act 1994 (SA), to a period of 14 years, eight months and five days. The adjusted non-parole period commenced from the date the applicant was taken into custody, namely 25 October 1989. Accordingly, the applicant became eligible for parole on 29 June 2004.
Since 29 June 2004 the applicant has made numerous applications seeking his release on parole. The applicant was first recommended for release by the Parole Board in November 2004. In December 2006 the Governor in Council resolved not to approve the applicant’s release. In late 2008 the Parole Board again recommended that the applicant be released on parole. Consequently, he applied for release in May 2009. No response was received from the Governor in Council. In October 2009 the Parole Board resubmitted its recommendation for the applicant’s release to the Executive Council. A further 12 months passed without a decision being made. In November 2010 the Parole Board forwarded an updated recommendation for the applicant’s release. In March 2011 the Governor in Council refused to approve the applicant’s release for the second time. No reasons were provided in relation to the Governor’s decision. In December 2011 the Parole Board ratified a cabinet submission recommending that the applicant be released on parole for a period of 10 years. After waiting a further 8 months without word of a decision, the applicant commenced an action for judicial review in August 2012. The matter was listed for hearing on 20 February 2013. Less than one week prior to the hearing of the judicial review application, on 14 February 2013, the Governor in Council approved the applicant’s release on parole. He was conditionally released to parole on 15 May 2013 for a period of 10 years. The conditions of his release, inter alia, mandated that the applicant not commit any offence, not possess any offensive weapon and abstain from alcohol.
Prior to the applicant’s release on parole, he spent a period of eight weeks undertaking a pre-release program. At that time, this was the longest period a prisoner was able to participate in the pre-release program. I understand that this is no longer the case.
Perhaps unsurprisingly, after being incarcerated for a period of almost 25 years, eight weeks on a pre-release program was not sufficient to prepare the applicant for life outside the prison system. Upon release, the applicant secured accommodation in Ovingham. He was provided with some support from members of a local church, OARS, a support worker and a mentor. Despite this support, he became overwhelmed by the outside world and found it difficult to adjust to life in the community.
The applicant breached the conditions of his parole on a number of occasions during his first few weeks on parole. These incidents were relatively minor and involved travelling to the northern suburbs without permission and returning negative urine tests. Investigation of these matters did not result in the cancellation of the applicant’s parole.
However, a further and more serious breach occurred in late August 2013. The applicant’s home unit in Ovingham was positioned near a hotel, the Bombay Bicycle Club. On the evening of 31 August 2013 the applicant was watching television and eating cheese. A group of intoxicated patrons who had left the hotel walked past the applicant’s home unit and proceeded to urinate on his motor vehicle. The applicant reacted aggressively. He chased the patrons whilst swinging a sock containing a weight in one hand and holding a cheese knife in the other hand. The applicant was arrested and charged with carrying a visible offensive weapon and disorderly conduct (the new offending). The applicant pleaded guilty to the new offending on the first return date and a magistrate entered a conviction without further penalty.
Although the charges for the new offending were issued by way of summons, the applicant was detained in custody from 2 September 2013 on a warrant issued by the Parole Board. On 6 September 2013 the Parole Board cancelled the applicant’s parole pursuant to s 74 of the Correctional Services Act 1982 (SA). He remains liable to serve the balance of his sentence for murder, namely, life imprisonment.
The applicant comes to this Court seeking an order fixing a non-parole period with respect to his outstanding sentence.
Correctional Services Act
Pursuant to section 70(1) of the Correctional Services Act a prisoner serving a sentence of life imprisonment who is released on parole will remain on parole for the period recommended by the Parole Board (and approved by the Governor) unless the release is cancelled or suspended, or the sentence is extinguished.
Cancellation of a release on parole occurs when there is a breach of a condition of parole or where a person is sentenced to imprisonment for an offence committed while on parole. Suspension of parole occurs where a person is serving imprisonment for an offence committed before release on parole.
Where parole has been cancelled by the Parole Board, a person becomes liable to serve the balance of the sentence or sentences of imprisonment in respect of which the person was on parole, being the unexpired balance as at the day on which the breach was committed. In the applicant’s case, the unexpired balance of the sentence as at 31 August 2013 is a period of life imprisonment.
The application to fix a non-parole period
The applicant seeks an order fixing a non-parole period pursuant to s 32(3) of the Act. This provision furnishes the power to fix a non-parole period in the following terms:
(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.
The applicant is not presently subject to an existing non-parole period.[1] It is open to the applicant to apply to this Court to fix a new non-parole period in relation to his outstanding sentence for the murder conviction.[2]
[1] Bromley v Police [1999] SASC 106, (1999) 202 LSJS 91 at 93.
[2] R v James (1990) 158 LSJS 7 at 8.
The power to fix a non-parole period conferred by s 32(3) is subject to the terms of s 32(5). Relevantly in this case, s 32(5)(ab) and s 32(5)(c) provide:
(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;
...
(c) a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—
(i) the gravity of the offence or the circumstances surrounding the offence; or
(ii) the criminal record of the person; or
(iii) the behaviour of the person during any previous period of release on parole or conditional release; or
(iv) any other circumstance.
...
Minimum non-parole period
Both counsel for the applicant and counsel for the Director submit that, should I consider it appropriate to exercise my discretion in favour of fixing a non-parole period, s 32(5)(ab) is applicable in the case of the applicant. For reasons I now provide, I consider that to be the case.
Subsection 32(5)(ab) was introduced into the Act by the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA). The transitional provision of the Amending Act provides that s 32(5)(ab) is retrospective in its application. This Court has previously found that the provision does not offend the Kable principle and is therefore constitutionally valid.[3]
[3] R v B, FG [2013] SASCFC 24, (2013) 115 SASR 499.
Section 32(5)(ab) is specific in its terms. It refers to the fixing of a non-parole period. It does not differentiate between a first non-parole period and a subsequent non-parole period. If it was Parliament’s intention that the provision have application only when fixing a non-parole period for the first time, so much could have been reflected in the terms of the section or referred to in the Second Reading Speech. However, the explanation of clauses in the Second Reading Speech notes that “...any non-parole period fixed in relation to the sentence of life imprisonment for an offence of murder must be at least 20 years.”[4] The use of the term ‘any’ suggests an intention to cover the field in relation to first and subsequent non-parole periods. Accordingly, I consider I am constrained in my sentencing discretion by s 32(5)(ab).
[4] South Australia, Parliamentary Debates, House of Assembly, 8 February 2007, 1745 (M J Atkinson, Attorney-General).
This approach accords with the established principle that, in fixing a non-parole period following the cancellation of a previous grant of parole, current sentencing standards are to be applied.[5] In the matter of R v Beauregard-Smith,[6] Martin J held that it would be artificial and inappropriate to attempt to apply standards that existed many years ago and which, in some instances, were set under an entirely different sentencing regime. In coming to this conclusion his Honour said:[7]
[5] R v Beauregard-Smith [2001] SASC 69 at [44] – [50], [62], [80] – [90], (2001) 79 SASR 408 at 417 – 418, 420 and 423 – 426.
[6] [2001] SASC 69, (2001) 79 SASR 408.
[7] R v Beauregard-Smith [2001] SASC 69 at [81] – [90], (2001) 79 SASR 408 at 424 – 426.
In the matter under consideration, if the judge in fixing the non-parole period was not to approach the matter afresh, by what principles was the judge to approach the task? The alternative view is not easy to articulate. Senior counsel for the appellant had difficulty in identifying with any precision the process which, according to his contention, the Court was required to undertake. He suggested it was a process in which the Court was required to determine how much longer an offender should spend in custody bearing in mind the prospects of rehabilitation and the need to protect the public. But if the Court is to undertake such a process, it could not sensibly do so without reference to most of the factors that governed the determination of the first non-parole period, including the gravity of the crime. In addition, if the Court's role was to be restricted in the manner suggested, the legislature could easily have given a specific direction to that effect. I am unable to discern in the scheme of the legislation any implication that such a limited approach is required of the Court.
In my opinion, when the scheme is viewed in its entirety, it is a necessary implication of the scheme that the principles of double jeopardy have a significantly modified application to the process of fixing a non-parole period following the cancellation of parole. On one view it might be said that no issue of double jeopardy, as that concept is traditionally understood, is involved. As a consequence of the conduct of the person on parole, and by force of the legislation, parole is cancelled and the whole process must start again. However, the fixing of a non-parole period is part of the sentencing process and the period is, for the purposes of the Sentencing Act, part of the sentence. From a practical point of view, a person who has been sentenced is, through the scheme of the legislation, placed in jeopardy of again being sentenced in respect of the original crime to the extent that a further non-parole period is to be fixed.
It is not surprising that Parliament would contemplate placing a person on parole in jeopardy to the extent that I have identified. A person released on parole is aware of the risks. The cancellation of parole and the consequences of that cancellation are only brought about because an offender, having been given the benefit of parole, has abused that benefit in a significant manner by breaching a designated condition or by committing an offence which warranted a sentence of imprisonment.
I have given anxious consideration to the issue of double jeopardy. Subject to the constraints I am about to mention, I am unable to escape the conclusion that the scheme created by Parliament necessarily involves overriding that fundamental principle and the Court must approach its task afresh.
The approach I have identified does not mean that the Court is free to ignore entirely the findings and views of the sentencing court at first instance. The principle of double jeopardy should be overridden only to the extent necessary to give effect to the scheme of the legislation. For example, it is not necessary to give effect to the scheme for the court fixing the non-parole period to consider afresh any findings of fact as to the circumstances of the crime made by the sentencing court at first instance. In my opinion such findings are binding upon the subsequent court. Similarly, if the judge at first instance has made a specific finding or expressed a view as to the gravity of the offending and where it sits in the scale of seriousness, and has sentenced on that basis, thesubsequent court would be bound by that finding or view. Generally speaking, such findings or views are unlikely to be ascertained with reasonable clarity merely from the length of the previous non-parole period. However, to the extent that a specific finding or view can reasonably be discerned from the remarks of the sentencing court at first instance, in my opinion the subsequent court is bound by those findings.
Different considerations apply with respect to findings or opinions concerning an offender's prospects of rehabilitation. As the circumstances of the appellant graphically illustrate, circumstances subsequent to the initial sentencing process can conclusively demonstrate that such findings or opinions formed by the sentencing judge were incorrect. Those findings or opinions are not binding upon the subsequent court.
The position of the appellant is further complicated by a change in the sentencing regime. At the time that the appellant's first non-parole period was fixed, in the normal course of events remissions of one-third would have been deducted from the non-parole period. In addition, subject to accepting the conditions fixed by the Parole Board, the appellant had to be released on parole at the conclusion of the non-parole period. The present regime does not provide for remissions and, importantly, the appellant is not entitled to be released on parole at the conclusion of the non-parole period. The conclusion of the no parole period now fixed will entitle the appellant to be considered for release on parole, but he will not be entitled to be released on parole.
In some cases an additional difficulty may confront a court fixing a no parole period many years after the fixing of a head sentence or earlier no parole period. Sentencing standards might have changed. If those standards have become heavier, a person in the position of the appellant might be said to have a genuine grievance if the non-parole period is now fixed by reference to a standard that is heavier than the standard applicable at the time the head sentence or first non-parole period was fixed.
The possible unfairness could be avoided if the court fixed the non-parole period by applying the sentencing standards applicable at the time when the sentence was imposed or the previous non-parole period was fixed. However, in my view such an approach is not appropriate. In respect of persons serving sentences of life imprisonment, many years may have elapsed between the fixing of the sentence or previous non-parole period and the subsequent fixing of a non-parole period. It is not difficult to envisage that a person serving a sentence of life imprisonment might be the subject of more than one cancellation of parole over a period of many years. In my opinion, it would be artificial and inappropriate to attempt to apply standards that existed many years ago and which, in some instances, were set under an entirely different sentencing regime. In addition, when parole has been cancelled because of the imposition of a sentence of imprisonment for an offence committed while on parole, the court will be required to fix a non-parole period in respect of both the balance of the original sentence and the sentence imposed for the crime committed while on parole. Current standards with respect to non-parole periods must be applied when fixing a period in respect of a sentence imposed for a crime committed while on parole.
Generally speaking, sentencing standards applicable at the time that a crime is committed are the standards by which a court is required to determine the appropriate sentence. For example, if the maximum penalty is increased between the commission of the crime and sentencing, in the absence of specific legislative direction to the contrary the maximum in existence at the time the crime was committed is applied. It is considered unfair to fix a sentence by reference to the increased standard. However, such reasoning is not applicable in the circumstances of the appellant. When the appellant was released on parole, he was aware that his parole would automatically be cancelled if he breached a designated condition or if he committed a crime while on parole for which he was sentenced to imprisonment. He was also aware that if, following cancellation, a future release on parole was to occur, he would be obliged to apply to the court to fix a new non-parole period. In these circumstances, the appellant cannot complain if, having abused the benefit of parole and engaged in conduct sufficiently serious to bring about the cancellation of parole, the new non-parole period is determined by reference to standards prevailing at the time that he was in breach of his parole.

Although in R v Beauregard-Smith[8] Martin J was in dissent regarding the overall outcome of the appeal, Doyle CJ and Williams J agreed that the fixing of a new non-parole period should be approached afresh.[9] In my view, that is the correct approach.
[8] [2001] SASC 69, (2001) 79 SASR 408.
[9] R v Beauregard-Smith [2001] SASC 69 at [44] – [53], [62], (2001) 79 SASR 408 at 417 – 418, 420.
Fixing a non-parole period
The authorities in relation to the operation of s 32 of the Act establish certain principles. First, section 32(3) facilitates the fixation of a non-parole period even though parole has been cancelled and the prisoner is thus liable to serve the unexpired term of their sentence.[10] Second, the primary purpose of s 32 itself is to require the court to fix a non-parole period, subject to the provisions of s 32(5)(c).[11] Third, when fixing a non-parole period, the court must take into account time already served, as required by s 32(7)(a) of Act.[12]
[10] R v James (1990) 158 LSJS 7; R v Beauregard-Smith [2001] SASC 69, (2001) 79 SASR 408.
[11] R v Glynn [2000] SASC 323 at [14] - [15].
[12] R v Greenwood [2000] SASC 204 at [23].
In considering the appropriate length of a non-parole period to be imposed, a number of matters are to be taken into account. The non-parole period fixed should continue to reflect the degree of criminality involved in the offending for which the sentence of imprisonment was initially imposed. This process involves an assessment of the amount of time which the prisoner must spend in prison in order to satisfy the punitive, deterrent and preventive purposes of punishment.[13] Other relevant considerations include:
·the gravity and circumstances of the original offence;[14]
·the nature, circumstances and seriousness of the breach or breaches of parole;[15]
·the protection of the community from violence at the hands of the applicant;[16]
·the likely future response to supervision and whether the applicant is a good candidate for parole;[17]
·the desirability of the applicant undertaking treatment if released;[18]
·the sentencing standards that are applicable at the time of the cancellation of the parole;[19] and
·all the considerations relevant to the fixing of a head sentence, although with greater weight given to rehabilitation.[20]
[13] R v Stewart (1984) 35 SASR 477 at 477; R v Beauregard-Smith [2001] SASC 69 at [24], (2001) 79 SASR 408 at 413.
[14] R v Beauregard-Smith [2001] SASC 69 at [44], (2001) 79 SASR 408 at 417.
[15] R v Beauregard-Smith [2001] SASC 69 at [44], (2001) 79 SASR 408 at 417.
[16] R v James (1990) 158 LSJS 7 at 9.
[17] R v Beauregard-Smith [2001] SASC 69 at [32], [56], (2001) 79 SASR 408 at 414 – 415, 419.
[18] R v James (1990) 158 LSJS 7 at 9.
[19] R v Beauregard-Smith [2001] SASC 69 at [44] – [50], [62], [80] – [90], (2001) 79 SASR 408 at 417 – 418, 420, 423 – 426.
[20] R v Miller [2000] SASC 16 at [42], (2000) 76 SASR 151 at 160.
Underlying facts
The applicant is now 53 years of age. He was brought up in a dysfunctional and violent household. He has an extensive criminal record, with convictions for offences ranging from larceny and breaking into buildings to assault and drug possession. Prior to being incarcerated in relation to the murder conviction, the applicant had spent time in custody for other offences. In fact, he had only been out of prison for a few weeks and was on parole at the time the murder was committed. In relation to the murder, the applicant has spent, apart from his brief period on parole in 2013, the last 25 years in custody.
The offence of murder was committed on 25 June 1989. I have had regard to the sentencing remarks of Millhouse J dated 28 February 1991. The offending occurred when the ex partner of a woman the applicant was seeing attended at a house to collect some belongings. The woman opened the door and handed the victim his belongings. The victim attempted to grab the woman and a struggle ensued. Somehow or other, the applicant came to be in possession of a shotgun. Whilst the victim was struggling with the woman, the applicant shot him to the chest at close range. The victim died minutes later. In his sentencing remarks, the Judge considered a pre-sentence report that deemed the applicant as suffering from an inability to react to situations of stress and as having contempt for authority figures. His Honour also noted the opinion of a psychologist that the applicant would have better prospects of rehabilitation if his attitude towards authority figures improved. The Judge found that the applicant’s offending was, although not the most serious kind of murder, not at the lower end of the scale. His Honour rejected the applicant’s account of the incident, considering it too improbable. I am bound by these findings.
I have already discussed the incident of wounding with intent to cause grievous harm that resulted in an extension of the first non-parole period. Although the applicant is not to be punished for this offending, as he has already served his sentence in relation to it, I consider it to be a matter of aggravation. It was a violent assault on a fellow prisoner that resulted in substantial injury to the victim. Further, this incident occurred during a period in which the applicant ought to have been controlling his behaviour.
The applicant’s conduct whilst on conditional release is concerning. The breaches involving travel outside set boundaries and negative urine tests, although minor, demonstrate an inability to adhere to parole conditions. The violent nature of the offending that resulted in the cancellation of the applicant’s parole is also a matter of serious concern. Such conduct makes clear the difficulties faced by an institutionalised prisoner in attempting to settle into the community post release. Although I consider that the applicant required additional time on the pre-release program and a greater level of support following his release, his aggressive behaviour and inability to comply with parole conditions cannot be ignored.
I have had the benefit of a Parole Board report and two reports from the applicant’s OARS case worker, as well as an affidavit of the applicant himself. I have taken each of these documents into account. The Parole Board report details the applicant’s protracted attempts to obtain release on parole. I accept that the nine years the applicant spent in custody between when he first became eligible for parole in 2004 and when he was finally granted conditional release in 2013 were difficult. There was, it could be said, no light at the end of the tunnel. When the time came that the applicant was in fact granted parole, he was not properly prepared. Most of his decisions had been made for him for 24 years and he became overwhelmed with the changes he faced on release. The author of the Parole Board report notes that, prior to the applicant’s conditional release, he requested additional time at the pre-release centre. This indicates a willingness on the part of the applicant to prepare appropriately for release into mainstream society.
While in custody, excepting a number of incidents that occurred in the early 1990’s, the applicant appears to have been a model prisoner. He was trusted and respected by prisoners and staff. Whilst at the Cadell Training Centre the applicant worked as a volunteer and undertook numerous courses. His participation in these activities was exemplary. He undertook various jobs in prison satisfactorily and was able to obtain a motor vehicle licence and a backhoe licence whilst in custody.
Once released on parole, the applicant obtained stable employment. His employer was satisfied with his performance and encouraged by his attendance. The reports of the applicant’s OARS case worker note that he maintained a regular presence with his case management team and effectively drew on what social supports he had. The applicant developed a strong rapport with his doctor, renewed relationships with family members and began attending church services. These factors, although providing some hope in relation to his prospects of rehabilitation, must be weighed against his breaches of parole.
Consideration
The first question I must decide is whether or not to decline to fix a non-parole period. This is a matter of discretion, although certain considerations identified in s 32(5)(c) of the Act ought to be taken into account. In considering whether to decline to fix a non-parole period, the court should have regard to the gravity and circumstances of the original offending, the criminal record of the applicant, his behaviour during any period of release and any other circumstances it considers relevant.
Although there are a number of matters of concern in relation to the applicant, I do not consider it appropriate to decline to fix a non-parole period. There is no exhaustive criteria for when the court should decline to set a non-parole period,[21] however the legislative scheme requires that a non-parole period be fixed in all but the most exceptional of cases.[22]
[21] R v Von Einem (1985) 38 SASR 207; Federici v Police [1999] SASC 95.
[22] R v Ashdown (1994) 72 A Crim R 63 at 68.
Murder is the most serious offence on the criminal calendar. There is no doubt that the applicant’s offending was grave. I also accept that he has an extensive antecedent history and has shown a blatant disregard for any conditions imposed on him during periods of release. However, these matters can be adequately dealt with by the imposition of a severe non-parole period.
The Parole Board in its report, while not opposing the fixing of a non-parole period, indicates that the applicant will require better preparation for release and a more gradual release into the community. Ms Ingleton, counsel for the Director, conceded that the situation of the applicant is not likely to fall within the exceptional circumstances considered in R v Von Einem[23] and Federici v Police.[24] In my view, the applicant’s participation in courses and volunteer work whilst in prison, and paid employment on release are commendable. These matters, along with the fact that he received minimal resocialisation prior to his release, persuade me that I should not exercise the discretion to decline to fix a non-parole period.
[23] (1985) 38 SASR 207.
[24] [1999] SASC 95.
Although there are features of the applicant's life which suggest favourable prospects of rehabilitation, namely the applicant's voluntary work, employment and participation in his own case management, the new offending demonstrates that, at present, the prospects of effective and enduring rehabilitation are problematic. The punitive, deterrent and preventative considerations in fixing a non-parole period must receive prominence.[25] Despite all of the matters favourable to the applicant, it is plain that there remains a need for the protection of the community.[26] A lengthy non-parole period is warranted.
[25] R v Stewart (1984) 35 SASR 477.
[26] R v Tytler [2002] SASC 246 at [19].
The present sentencing regime requires a non-parole period of at least 20 years to be imposed. That, however, is subject to the existence of special reasons identified in s 32A(3) of the Act. The applicant does not fit into any of the three recognised categories of special reasons. He did not enter a plea to the murder charge or cooperate with the investigation. The sentencing judge rejected the applicant’s version of events. In those circumstances, it could not be said that the victim’s conduct substantially mitigated the conduct of the applicant.
I must have regard to the circumstances of the murder and of the new offending, and consider the seriousness of these crimes. Although the new offending of itself was not particularly serious, it demonstrates that the applicant is not presently capable of compliance with the conditions imposed on him whilst on release. Even after making due allowance for the many positive features of the applicant’s progress since he was imprisoned for murder and after his release on parole, the non-parole period to be fixed must be substantial. A non-parole period of 20 years is to be imposed for an offence at the lower end of the scale of objective seriousness.[27] This applicant’s offending cannot be said to be at the lower end of the range. Indeed, the sentencing Judge at first instance found that it was not.
[27] Section 32A(1) of the Criminal Law (Sentencing) Act 1988 (SA); R v Ironside [2009] SASC 151, (2009) 104 SASR 54.
The fixing of a non-parole period, giving fair and proper weight to all relevant considerations, including the proper interests of the applicant and the necessity of protecting the community, is a difficult task. In my view, taking into account all of the circumstances, I consider a non-parole period of 26 years to be appropriate.
I must have regard to the period which the applicant has served in prison prior to his release on parole.[28] Generally, when a non-parole period is fixed, it commences from the day the prisoner was returned to prison upon revocation of parole.[29] I do not consider that approach to be appropriate in the circumstances of this case. To do so would create conflict between the requirement to give credit for time already served and the imposition of the mandatory minimum period. In my view, justice in this case requires that the non-parole period be backdated to the time the applicant was first taken into custody in relation to the murder charge. I consider this to be so regardless of the fact that the applicant spent some time on conditional release.[30] That time must be considered in context. It was an episode of a number of weeks in a total period of more than 25 years in custody. I would backdate the non-parole period to commence on 25 October 1989.
[28] Section 32(7) of the Criminal Law (Sentencing) Act 1988 (SA).
[29] R v Wilson (1999) 203 LSJS 459 at [463]; R v James (1990) 158 LSJS 7 at 9.
[30] See R v Tilley [2010] SASCFC 73.
When the applicant becomes eligible for parole, and should any application for release be approved, I encourage the Parole Board to ensure he is adequately prepared for release. It appears that the applicant would greatly benefit from a period of 12 months in a pre-release program and a gradual shift from the pre-release centre into life in mainstream society.
Conclusion
I would allow the application. I fix a non-parole period of 26 years. The non-parole period is backdated to commence on 25 October 1989.