R v Escalante - [2023] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v ESCALANTE
[2023] SASC 138
Reasons for Decision of the Honourable Justice Kimber
29 September 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
This is an application to fix a non‑parole period pursuant to s 47(3) of the Sentencing Act 2017 (SA).
On 20 December 2001, following pleas of guilty to murder and wounding with intent to cause grievous bodily harm, the applicant was sentenced to imprisonment for life with a non‑parole period of 12 years, one month. Having been released on parole, the applicant was taken into custody on 15 July 2022 after returning positive results to drug screening tests. On 16 August 2022, in finding the applicant to have breached the ‘no drugs’ parole condition, the Parole Board cancelled the applicant’s parole.
Held:
1.      The application to fix a non‑parole period is granted.
2.      A non‑parole period of 15 months is fixed, backdated to 15 July 2022.
Sentencing Act 2017 (SA) s 47, referred to.
R v Bakewell [2022] SASC 39, applied.
R v Fricker [2017] SASC 107; R v Roberts [2016] SASC 41; R v Marshal (Supreme Court of South Australia, David J, 07 November 2008) ; R v Early [2014] SASC 202; R v Brady [2015] SASC 115, discussed.

R v ESCALANTE
[2023] SASC 138
Criminal: Application to fix a non-parole period
KIMBER J:
Introduction

This is an application by Carlos Escalante to fix a non‑parole period in respect of a sentence of life imprisonment under s 47(3) of the Sentencing Act 2017 (SA). On 20 December 2001, Mr Escalante was sentenced to life imprisonment with a non‑parole period of 12 years and one month after pleading guilty to offences of murder and wounding with intent to cause grievous bodily harm. He was released on parole on 12 December 2016.
On 15 July 2022, Mr Escalante was remanded on a Parole Board warrant due to breaches of the ‘no drugs’ condition of his parole. On 16 August 2022, the Parole Board determined to cancel his parole.
For the reasons that follow, I fix a non‑parole period of 15 months backdated to 15 July 2022.
Background
On 11 December 1999, Mr Escalante, along with two others, murdered Matthew Bourne and wounded Colin Hillman. The offending occurred as part of a random attack on the victims by the three accused for the purpose of stealing Mr Hillman’s phone. All three were armed with a weapon and Mr Escalante was armed with a knife. It was the stab wound inflicted by Mr Escalante that caused the death of Matthew Bourne and a stab wound inflicted by him that caused serious injury to Colin Hillman. Mr Escalante was found to have a greater share of culpability for the offending than the other two. At the time of the offending, he was 17 years of age.
Mr Escalante’s behaviour in prison was initially consistent with reason to be concerned about his prospects of rehabilitation. In 2004, however, his behaviour improved and from this time, Mr Escalante has received good institutional reports.
Prior to his first release on parole in December 2016, the Prison Health Service had reported that Mr Escalante showed no signs of substance dependency. However, in December 2019, his parole was cancelled due to breaches of his parole in relation to the use of illicit substances. After a new non‑parole period was set, Mr Escalante was released on parole again on 7 July 2021. However, his parole was cancelled in August 2022 as a result of further breaches relating to the use of illicit substances. He has been in custody as a result of these breaches and the cancellation of his parole since 15 July 2022.
Breaches of parole
For a period of approximately two years from the time of his initial release, Mr Escalante was compliant with his parole conditions and seemed to the Parole Board to be making good progress. However, in August 2018, he returned a positive test to methamphetamine and amphetamine. At this point, the Parole Board decided that he be subject to regular drug testing. Given this relapse was attributed to stress difficulties at work, it was suggested that Mr Escalante arrange for a medical professional to provide assistance with his stress and mental health. He was required to report on his progress.
After failing to report on 27 November 2018 and 17 December 2018, Mr Escalante was taken into custody in January 2019, but released later that month with the Parole Board taking the view that he would benefit from further supervision.
Over the course of the following 18 months, Mr Escalante breached the no drugs condition of his parole on numerous occasions which resulted in a number of short periods in custody on Parole Board warrants. On 23 June 2020, the Parole Board cancelled his parole for the first time in respect of these breaches. As stated above, a new non‑parole period was fixed by this Court and he was subsequently released on parole on 7 July 2021.
On 6 May 2022, Mr Escalante returned a positive test to methamphetamine, in breach of a condition of his parole. He further returned positive tests to illicit substances in breach of his parole on 22 June 2022 and 4 July 2022. On 15 July 2022, the Parole Board issued a warrant and Mr Escalante was returned to custody. He was interviewed on 16 August 2022 after which the Parole Board resolved to cancel his parole.
In a letter to the Parole Board at that time, his Community Corrections Officer observed that while his drug use was not a component of his original offending, his continued use of drugs while in the community was extremely concerning. The Community Corrections Officer opined that Mr Escalante’s use of dishonesty to avoid detection showed he was not committed to ceasing his use of illicit drugs in the community.
Parole Board letter
The Parole Board does not object to a new non‑parole period being set. In a letter dated 15 August 2023, the Presiding Member outlines concerns related to Mr Escalante’s drug use. A concern expressed is that despite undertaking a program while on parole, Mr Escalante has still relapsed. The Presiding Member considers that Mr Escalante is neither confronting nor acknowledging his problem with drugs and opines that until that is acknowledged, no amount of psychological assistance or counselling will be effective.
The Parole Board has also noted Mr Escalante has been able to maintain employment whilst on parole and has had employers who have been prepared to offer him flexible working arrangements to suit his needs. Further, that he has an extremely supportive family and settled accommodation.
However, despite these things, the letter concludes that Mr Escalante remains at risk of re‑offending unless and until he is able to acknowledge his substance abuse and make a commitment to avoid drug use in future.
Submissions of the applicant
Counsel for Mr Escalante, Ms Schutz, submits that there is little utility in Mr Escalante serving further time in custody. Drawing upon material to which I will turn, Ms Schutz submits that during his current period in custody, Mr Escalante has taken steps to address his drug issue; has been assessed as being at a very low risk of re‑offending; has completed the rehabilitation courses offered to him; no further treatment in custody is considered necessary and nor would any further treatment in custody be offered.
During his most recent period in custody, Mr Escalante has not returned any positive tests for drug use. Furthermore, he resides in a drug‑free unit at the Cadell Training Centre. Ms Schutz submits Mr Escalante has shown insight into his illicit substance abuse in understanding the factors that would lead him to engaging in illicit substance abuse and is able to accept responsibility for the breaches.
Ms Schutz submits that the breaches were the result of specific criminogenic factors which placed Mr Escalante at risk — factors which have either been addressed to the extent which they can be during this last period in custody or which can be further addressed through different measures being in place while Mr Escalante is on parole in the community. Specifically, that Mr Escalante has been institutionalised renders him vulnerable in transitioning to environments outside of custody which are not sufficiently structured. It is submitted that Mr Escalante recognises that the result of this is that it is difficult for him to make decisions for himself and that he struggles to integrate.
In relation to the subject breaches of parole, Ms Schutz pointed to the fact that Mr Escalante remained drug free for the first four months after having been released after serving his second non-parole period. This was while he was engaging in consistent fulltime work prior to his commencement of the Matrix program. Ms Schutz submits that this program interrupted his work routine and structure, gave him more free time, increased his time spent with anti‑social peers and increased his exposure to language associated with drugs. He submits that these factors contributed to his most recent relapse.
Essentially, Ms Schutz submits that in the most recent period in custody, Mr Escalante has taken every step that is available to him to address his substance abuse risk and that his rehabilitation is now best progressed by being in the community. Ms Schutz further submits that the program Mr Escalante has recently undertaken while in custody have given him insight into his illicit substance abuse issue. Given what is said to be a low risk of violent offending and that he is not eligible for any other programs while in custody, Ms Schutz submits it is appropriate for a non‑parole period to be set which enables him to continue progressing his rehabilitation in the community as soon as possible.
Report of Mr Williams
For the purposes of this application, I have received a psychological report from Mr Luke Williams dated 14 December 2022.
Mr Williams describes the applicant reporting that he first used illicit substances when he was in custody. Mr Escalante has reported that he commenced using methamphetamine while on parole to cope with feelings grief in relation to the passing of his baby. Mr Escalante acknowledged that his use of methamphetamine was generally triggered by negative emotional states. Mr Williams noted that the breaches of parole by Mr Escalante are primarily associated with the provision of positive urinalysis results and his compliance with the other conditions of his parole has otherwise been ‘generally positive’.
In relation to his most recent period in the community, Mr Escalante reported that his employment had given him a sense of achievement and mitigated his feelings of wasting his life.
Mr Escalante also reported to Mr Williams having participated in the PshychMed Matrix Rehabilitation Program (the Matrix Program). While participation had given him deeper insights into the reasons and triggers for his drug use, Mr Escalante reported finding that the group environment within the program with its use of drug terminology and discussion of drug habits ‘triggered’, or increased, his desire to use methamphetamine. He described being negatively impacted by interaction with other participants in the program who mainly comprised of persons who had also been previously incarcerated. Participation in the Matrix Program also interrupted his work routine which resulted in him having more free time. This counteracted the sense of achievement and value Mr Escalante obtained through employment and resulted in him spending increasing amounts of time with anti‑social peers and commencing intermittent use of methamphetamine.
Mr Williams identifies the applicant as meeting the criteria for the following diagnoses: Stimulant Use Disorder; Agoraphobia; and Adjustment Disorder with Mixed Anxiety and Depressed Mood. Based on Mr Escalante’s description of his symptoms, Mr Williams identifies his Stimulant Use Disorder to be moderate. Whilst in custody in a controlled environment, Mr Escalante has been able to maintain sustained remission from his use of methamphetamines.
However, Mr Williams does not attribute Mr Escalante’s breaches to these diagnoses. Mr Williams opined that an aspect of Mr Escalante’s circumstances that could more readily explain his offending behaviour is his long-term incarceration; effectively, Mr Escalante suffers from what is broadly labelled as institutionalisation. The result of a person being subject to external controls which govern their routines and social interactions and the experience of a long‑term stigmatised status from an early age can be such that a person does not develop their autonomy, personality or capacity for independent judgment which impairs their ability to function effectively outside of the institutional environment. Mr Williams has observed that Mr Escalante’s descent into drug use correlated with a reduction in his hours of employment which lessened his structural restraints and increased his free time.
Mr Williams noted that with Mr Escalante’s risk of violent reoffending being low, his primary risk of being returned to custody lies with any relapse into illicit substance abuse and that without appropriate intervention, he remains at risk of further breaches of this type. Mr Williams recommends that placement in the community under strict reporting requirements would best address Mr Escalante’s institutionalisation and further of his rehabilitation. Among other things, Mr Williams opines that Mr Escalante’s risks of reoffending upon his release can be addressed if he is referred to a community‑based psychologist for intensive intervention; placed on the ‘control tier’ of reporting requirements; and if full‑time employment is prioritised to ensure the benefits of the structure it provides.
Mr Williams has provided a further letter dated 14 August 2023 confirming that he is able to provide psychological therapy to Mr Escalante and is able to commence immediately following his release into the community.
The SMART Recovery Program
Between January 2023 – March 2023, Mr Escalante completed the SMART Recovery Program. That program included six one on one sessions designed to assist Mr Escalante with his illicit drug use. The report of Ms Nelson, Rehabilitation Counsellor, sets out that Mr Escalante displayed a positive attitude to counselling. Mr Escalante showed a good understanding of the factors which influence his negative decision making and strategies to minimise poor decisions in the future. Ms Nelson opines that Mr Escalante has made considerable progress towards relapse prevention. Ms Nelson also set out that Mr Escalante has been offered the opportunity to access the SMART Recovery groups in the community upon release, but that no further one on one support will be offered in custody.
Position of the Director
Counsel for the Director, Ms Liptak, did not oppose the fixing of a non‑parole period. Ms Liptak’s submissions were directed at the principles to be applied in setting the new non‑parole period. In conceding the appropriateness of the application, Ms Liptak acknowledged the steps taken by Mr Escalante in addressing his continued substance abuse issues, recognising that he now acknowledges his issues with drug use and any consequences associated with continuing to use drugs.
Ms Liptak submitted that it is for me to determine Mr Escalante’s prospects of rehabilitation and the likelihood of future abstinence from illicit substances in circumstances where Mr Escalante’s primary risk of further breaches of parole is illicit substance abuse. However, noting his progress, Ms Liptak acknowledged the commitment Mr Escalante appears to have made to taking the steps necessary to continue his rehabilitation.
Community Impact Statement
A Community Impact Statement authored by the Commissioner for Victims’ Rights (the Commissioner) on behalf of the family and friends of the victim (co‑victims) was provided by consent and read in Court.
The Community Impact Statement sets out that the co‑victims had demonstrated a ‘great deal of understanding, balance and objectivity with regard to Mr Escalante’ and that they had not opposed his release on parole in the past. Even after the first time Mr Escalante’s parole was cancelled in 2020, the co‑victims, save but one, were supportive of his application for release on parole at that time.
However, having become aware of the subject breaches, the co‑victims have expressed frustration. They feel that Mr Escalante has demonstrated ‘complete disregard for the sanctity of life, his parole conditions and the opportunities he was given’. They do not believe he is willing and able to comply with his parole conditions given that this is not the first time he has expressed a willingness to change.
The primary concern of the co‑victims is that Mr Escalante is truly rehabilitated such that the community is safe from experiencing the grief and pain they have experienced due to Mr Escalante’s conduct. The breaches of parole by Mr Escalante have diminished their trust and confidence in his rehabilitation and cause them to be concerned about the safety of the community if Mr Escalante is released.
In acknowledging that this application is about whether a non‑parole period should be set, and if so, its duration, the co‑victims have requested that their views be taken into account in determining the application. They are of the view that Mr Escalante requires special engagement in resocialisation and should be required to participate in such a program for between 24 – 48 months prior to being eligible for release on parole. Due to their concerns for the safety of the community, they believe this treatment should occur while Mr Escalante remains in custody.
Consideration
I commence by observing the legal principles which apply. Section 47 of the Sentencing Act 2017 provides as follows:
47—Duty of court to fix or extend non‑parole periods
…
(3)If 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.
…
(5)The above provisions are subject to the following qualifications:
(a)     a non‑parole period may not be fixed—
(i)in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than 12 months; or
(ii)in respect of a person who is liable to serve a sentence in the community while subject to an intensive correction order;
(b)     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)     if a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non‑parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed;
(d)     if fixing a non‑parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non‑parole period prescribed in respect of the offence is four‑fifths the length of the sentence;
(e)     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.

The principles governing the discretion to fix a non‑parole period where a person is serving a sentence of imprisonment but is not subject to a non‑parole period are well settled. Considerations relevant to determining an application for the fixing of a non‑parole period were set out by Peek J in the case of R v Fricker.[1] These include:
·The prospects of rehabilitation on parole;
·The gravity of the offences on which the offender was imprisoned and then paroled;
·The gravity of the breaching offences on which the offender was imprisoned or the breach of the designated condition;
·The need to deter the offender and others from commission of offences of the type with respect to which he was on parole and offences of the type that breached that parole;
·The need to deter the offender and others from breaching parole.[2]
[1] [2017] SASC 107.
[2] Ibid at [20] quoting R v Roberts [2016] SASC 41 and applied in R v Bakewell [2022] SASC 39, [48].
I note different approaches have been taken to the application of sub-s (5)(b) by this Court in applications under s 47(3) of the Sentencing Act 2017.[3] I respectfully agree and adopt the approach of Kourakis CJ in R v Bakewell[4] where his Honour read down that subsection finding that it was only intended to apply when the Court is fixing a non‑parole period for the first time.
[3] See, eg: R v Marshal (Supreme Court of South Australia, David J, 07 November 2008); R v Early [2014] SASC 202, at [17]–[20], [39]; R v Brady [2015] SASC 115, [7]–[9]; R v Fricker [2017] SASC 107, [21]–[23]; R v Bakewell [2022] SASC 39, [46]–[48].
[4] [2022] SASC 39, [46]–[48].
This case
Circumstances of breaches
That Mr Escalante has relapsed into illicit substance abuse on multiple occasions while on parole is of significant concern. The link between illicit drug use and offending is well known. I accept what Mr Williams has said about Mr Escalante’s risk factors as a result of his institutionalisation. I also accept what was expressed in the Parole Board letter about the importance of Mr Escalante being able to acknowledge and confront his problem with illicit substances and make a genuine commitment to deal with it.
Despite Mr Escalante’s relapses into illicit substance abuse, he has not committed any further offences. His illicit substance use has involved methamphetamine and amphetamine. While there was evidence that alcohol was involved when the offending for which he was sentenced was committed, there was no evidence that the use of any substance other than alcohol played any role in the violent offences for which Mr Escalante was sentenced.
The circumstances in which Mr Escalante breached his parole on both occasions are best viewed in light of Mr Williams’ assessment of the aetiology of Mr Escalante’s behaviour and its relationship with his psychological functioning. That is, that Mr Escalante’s institutionalisation has impaired his sense of autonomy and ability to make independent choices rendering him more reliant ‘on external contingencies and environmental constraints to control behaviour’. This goes some way to explain Mr Escalante’s first relapse into illicit substance abuse after the passing of his young child and subsequent relationship breakup. Furthermore, given the importance of structure and external contingencies such as full‑time work, these factors shed light on the circumstances of his second relapse and cancellation of parole where, by virtue of undertaking the Matrix program, he had more free time.
In a letter to the Court, Mr Escalante has shown some insight into these factors. Whilst this does not render the breaching behaviour any less serious, that insight is an important step towards rehabilitation.
Rehabilitation
Mr Escalante has made progress during this time in custody.
He has successfully completed the SMART Recovery Program. In addition, he has engaged in counselling through the Redress Support Service at Relationships Australia.
Mr Williams has opined that the best place for Mr Escalante’s rehabilitation to continue to progress would be in the community. I accept that opinion. I also accept the submission of Ms Schutz that Mr Escalante has taken the opportunity provided to him during this most recent period in custody to address his substance abuse. I accept that programs in custody which might promote rehabilitation have been taken as far as they can and that no further one on one programs will be offered while in custody.
Suitability for parole
Mr Escalante has been assessed as being at a low–moderate risk of violent reoffending. The consequence of this is that he has been considered unsuitable for participation in certain rehabilitation programs which are available in custody, namely, the Violence Prevention Program or the Making Changes Program. Despite his low–moderate risk of reoffending, a relevant factor in assessing Mr Escalante’s suitability for parole is his poor history of compliance with parole due to his use of illicit substances.
In a report from the Parole Board dated 15 August 2023, the Presiding Member expressed the view that Mr Escalante would not be able to deal with his illicit substance abuse problem until he was able to confront and acknowledge the problem. To this end, the progress he has made in his rehabilitation during this most recent period in custody is important. As set out above, Ms Nelson has expressed the view that Mr Escalante was able to make links to the consequences of his choices and showed insight into how he has maintained his abstinence while in custody. Furthermore, he was able to show good insight into the factors that influence his negative decision making and strategies to minimise these factors. However, it must be noted that there is a significant difference between being drug free and engaging in rehabilitation programs while in custody and remaining drug free in the community. Mr Escalante has relapsed in the community more than once.
When Mr Escalante was most recently granted parole, he maintained employment working in landscape construction. Since being in custody, he has engaged in volunteering with the CFS and has been involved in contributing to flood relief efforts in the community. In addition to the rehabilitation programs in which he has been engaged whilst in custody, he has obtained his MR truck licence, a Certificate II in Civil Construction and completed a work zone traffic management course and various certificates in relation to his involvement with the CFS.
If Mr Escalante is to be granted parole, as set out above, he has been offered the opportunity to access SMART Recovery groups in the community. Mr Williams has also provided a letter confirming his willingness to provide psychological therapy to Mr Escalante and is available to commence doing so if he is to be released.
Furthermore, that Mr Escalante remained compliant with his parole for two years upon his first grant in December 2016 is important when viewed in light of the circumstances preceding his breaches of parole and the aetiology of his offending behaviour.
Conclusion
I do not overlook the concerns expressed by the co‑victims in the statement provided by the Commissioner. The consequences of Mr Escalante’s offending will almost certainly remain with them the rest of their lives. I agree that Mr Escalante has not taken the opportunities afforded him through parole. Mr Escalante’s conduct on parole has involved drug use and that brings with it a risk of offending. Nonetheless, in finding it appropriate to fix a new non‑parole period, I recognise that Mr Escalante’s efforts whilst in custody go some way to addressing the concerns raised in the Community Impact Statement.
Having regard to the considerations set out above, I am satisfied that Mr Escalante has substantially served a period in custody which is a sufficient reminder of the importance of complying with his parole conditions. His continued efforts to progress his rehabilitation while in custody indicate as much and are to be commended.
In the circumstances, I fix a non‑parole period of 15 months to commence on 15 July 2022.