R v Earley

Case [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…

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AGLC
R v Earley [2014] SASC 202
Case
[2014] SASC 202
Decision Date

CaseChat Overview and Summary

The applicant, who had been convicted of the murder of Mark Charles Scott, applied to the Supreme Court of South Australia to fix a non-parole period for his sentence of life imprisonment. The case required the court to decide whether to exercise its discretion to decline to fix a non-parole period, and if so, to determine an appropriate non-parole period if it did not decline to fix one. The court considered the gravity of the offence, the applicant's criminal record, his behaviour during any period of release, and other relevant circumstances.

The court concluded that it was not appropriate to decline to fix a non-parole period despite the seriousness of the offence, the applicant's extensive antecedent history, and his disregard for conditions imposed on him during periods of release. These factors could be adequately addressed by imposing a severe non-parole period. The court also noted the applicant's commendable participation in courses, volunteer work, and paid employment, as well as his minimal resocialisation prior to release. However, the new offending demonstrated that the prospects of effective and enduring rehabilitation were still problematic. The court found that the need for the protection of the community warranted a lengthy non-parole period, and it fixed the non-parole period at 26 years, backdated to commence on 25 October 1989.

The court ordered that the non-parole period be fixed at 26 years, backdated to commence on 25 October 1989.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].