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…

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 Escalante

Details

AGLC: R v Escalante [2023] SASC 138
Case: [2023] SASC 138
Decision Date

CaseChat Overview and Summary

In the matter of R v Escalante, the defendant was convicted for his role in the murder of Matthew Bourne and the wounding of Colin Hillman. The sentencing judge was tasked with determining an appropriate non-parole period for Mr Escalante following his breaches of parole. The key legal issues were the gravity of Mr Escalante's original and breaching offences, his prospects of rehabilitation, and whether fixing a non-parole period was appropriate given his parole breaches. The sentencing judge found that while Mr Escalante had breached parole conditions by using illicit substances, he had also made efforts to rehabilitate during his time in custody. The judge also noted the concerns of the victims and their families. After weighing these factors, the sentencing judge determined that fixing a non-parole period of 15 months was appropriate, with the period backdated to the date of Mr Escalante's most recent breach of parole. This reflected both the seriousness of the original offences and the need to deter further breaches of parole. The sentencing judge concluded that Mr Escalante had substantially served a sufficient custodial period to serve as a reminder of the importance of complying with parole conditions.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].