R v Fricker - [2017] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRICKER
[2017] SASC 107
Reasons for Ruling of The Honourable Justice Peek
20 July 2017
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 - PARTICULAR CASES
Application to fix a new non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988.
The applicant had been found guilty of murder in 1985, for which he received in 1986 a life sentence with an 18 year non-parole period. While in custody, he committed a number of offences which resulted in his non-parole period being extended on three different occasions. The applicant was previously granted parole in 2001, but while on parole committed a number of serious offences. His parole was cancelled, his life sentence resumed, and a new four year non-parole period was set.
The applicant was again released on parole in 2012. During this second period of parole the behaviour of the applicant was much improved. His work ethic was very good and he abstained from any violence. However, he contravened his parole conditions by consuming alcohol and illicit substances, and by being convicted of driving with a prescribed concentration of alcohol and thus contravening a condition of his provisional drivers licence. The applicant’s parole was again cancelled on 2 February 2016, and his life sentence again resumed.
The applicant now applies to this Court to fix a new non-parole period.
Held:
(1) The correct approach to fixing a new non-parole period for the offence of murder is that set out by Vanstone J in R v Brady (2015) 123 SASR 294, as opposed to by Stanley J in R v Earley [2014] SASC 202.
(2) Having regard to: the circumstances of the original offence; the need to protect the community; the time which the applicant has spent in custody serving the life sentence; the whole of the applicant’s offending committed while in custody; the circumstances and seriousness of the breaches of the parole; the need to deter the applicant and others from breaching parole; the applicant’s substance abuse problems; the applicant’s demonstrated work ethic and employment prospects; the support mechanisms available to the applicant; and the applicant’s general suitability for parole and prospects for rehabilitation, a non-parole period of 19 months is fixed.
Criminal Law (Sentencing) Act 1933 ss 20B, 32; Correctional Services Act 1982 s 74, referred to.
R v Brady (2015) 123 SASR 294, applied.
R v Earley [2014] SASC 202, not followed.
R v Roberts [2016] SASCFC 41, discussed.

R v FRICKER
[2017] SASC 107
Criminal

PEEK J. This is an application to fix a new non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) in relation to the applicant’s life sentence for the offence of murder imposed on 11 August 1986.
Nature, circumstances and seriousness of the original offending
On 13 February 1985, the applicant, then having recently turned 18 years of age, deliberately stabbed the victim to death on the garden path outside his home. For more than a year prior to the murder, the applicant and the victim had been rivals for the affection of a female. This rivalry had involved multiple previous physical altercations, including the applicant violently beating the victim with a baseball bat. On the night of the murder, the applicant attended the victim’s property, where the female in question was present, and waited outside the front window for more than an hour. Ultimately, the victim attempted to chase the applicant off of his property, but the applicant refused to go, and instead stabbed the victim numerous times in the upper body.
On 19 November 1985, the applicant, who was still 18 years of age at the time, was convicted by a jury of murder. On 11 August 1986, White (Michael) J fixed a non-parole period of 18 years, backdated to commence on the date of his arrest, 15 February 1985.
The sentencing Judge noted that the applicant had committed previous serious crimes of violence. His Honour considered that the offence of murder here, although it was a crime of passion, was deliberate, and that the crime was “well up in the middle range of murder”. White J was not entirely unsympathetic to the personal circumstances of the applicant. He noted that, since the age of 12, the applicant had been largely homeless after leaving an unhappy, drunken and violent home; he habitually carried around a large knife for protection, and although it was not taken along that night for a specific purpose, it was ultimately used to deliberately kill the victim.
The period of custody from 1986 to 1994 – bad behaviour and extensions of the original non-parole period
During the early part of the applicant’s custodial sentence, he continued to engage in violent offending. Between December 1987 and June 1994, the applicant was sentenced for further offences committed while in custody including unlawful wounding, common assault, causing grievous bodily harm with intent to do harm and escaping from lawful custody. The details made available to this Court are scant, but it is clear that his non-parole period was extended on some three different occasions, and ultimately to 23 years imprisonment.
1994 to release on parole in 2001
The only offences occurring between 1994 and the applicant’s release on parole in 2001 were an offence of an escape from custody for which the applicant’s non-parole period was again extended for an additional 12 months; and two counts of possessing a controlled substance committed in 1999 for which he was fined $500.
Release on parole from 2001 to 2005
The applicant’s non-parole parole expired on 20 November 2001 and he was released on parole on 12 December 2001, after less than 17 years in custody. Again, details are lacking but it is clear that an adjustment was made in the light of judicial decisions concerning the “truth in sentencing” legislation.[1]
[1] Sentencing remarks of Nyland J, 4 November 2005, p 1.
The applicant’s response to this first period of parole was poor. He committed a number of offences between 2 December 2002 and 11 January 2005 which may be summarised as follows: carry offensive weapon (2); resist police (3); damage property (4); drive while disqualified (2); drive in reckless or dangerous manner(2); aggravated serious criminal trespass (residential); larceny; endanger life; act likely to cause harm (2); dishonestly take property without owners consent (2); drive at a dangerous speed (3); escape from custody; drive or use motor vehicle without consent; fail to comply with request to stop vehicle; drive at a speed over speed limit (5); and making off without payment (4).
The applicant was taken into custody on 12 November 2004. He was sentenced for some of these offences in Magistrates Courts and no non-parole period was then fixed.
The applicant’s parole was cancelled pursuant to s 74 of the Correctional Services Act 1982 and his sentence of life imprisonment resumed. Section 74 provides that:
74—Cancellation of release on parole by Board for breach of conditions
(1) If the Board is satisfied that a person who has been released on parole has, while on parole, breached a condition of the parole, the Board may, by order, direct that the person serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which the person was on parole, being the balance unexpired as at the day on which the breach was committed.
Further sentencing by Justice Nyland on 4 November 2005
On 4 November 2005, the applicant came before Nyland J for sentencing for the bulk of the above offending between 2 December 2002 and 11 January 2005. Nyland J imposed custodial sentences amounting to a total of six years two months which was to be served cumulatively upon a sentence of one year six months imposed by a Magistrate for portion of the offending. There was therefore a total head sentence of seven years and eight months imprisonment (to be served concurrently with the life sentence) as to which period Nyland J fixed a non-parole period of four years to commence on the date of sentencing, 4 November 2005. That non-parole period of four years took into account that the applicant had been taken into custody on 12 November 2004.
Nyland J was asked to declare the applicant to be a serious repeat offender as defined by s 20B of the Criminal Law (Sentencing) Act 1988. Her Honour declined to do so, but appropriately warned the applicant that:[2]
… if you commit another serious offence, the court would have no option but to declare that you are a serious repeat offender and punish you accordingly.
[2] Sentencing remarks of Nyland J of 4 November 2005, p 12.
Release on parole from 9 August 2012 to 2 February 2016
The applicant was again released on parole on 9 August 2012. The applicant’s response to this second period of parole, at least initially, was this time more positive. After nearly a year of compliance, on 6 July 2013 the parole board reduced his reporting regime from twice weekly to weekly. Towards the end of his second year on parole, the parole board further reduced his reporting regime to fortnightly.
However, on 29 September 2013, the applicant received an expiation notice for driving with a prescribed concentration of alcohol, and contravening a condition of his provisional drivers licence. The applicant did not disclose this to the parole board or to his community corrections officer.
Later, in September 2014, the applicant provided a urine test positive for cannabis (administered as part of his parole conditions). This was dealt with by the parole board by way of a warning letter.
Later still, on 24 April 2015, the applicant was charged with driving with a prescribed concentration of alcohol, and contravening a condition of his provisional drivers licence. He was subsequently convicted of this offending on 22 June 2016 in the Port Augusta Magistrates Court, fined $900, and disqualified from driving for four months and two days. As a result, the parole board issued a summons and interviewed the applicant. The parole board dealt with the matter as follows:[3]
The Parole Board noted his supportive relationship, his employment, his good work record, and his compliance with other conditions and having regard to all those matters deferred any penalty pending a progress report in three months.
[3] Parole board report, dated 24 May 2017.
Over six months passed thereafter without incident. However, on 4 January 2016, the applicant again provided a positive urine test, this time for methylamphetamine, amphetamine and cannabis. The parole board issued a warrant for the applicant’s arrest on 14 January 2016 and he was arrested on 17 January 2016.
The parole board took the view that the applicant had “relapsed back into substance abuse and had ceased to be open and honest with his Community Corrections Officer”. On 2 February 2016, the parole board found the above breaches proved, together with an additional breach of the no alcohol condition, namely that he consumed alcohol on 6 December 2015. His parole was cancelled again as from 2 February 2016 and the life sentence resumed. The applicant has been in custody since 17 January 2016.
The present application to set a new non-parole period
The applicant now applies to the Supreme Court for a non-parole period to be fixed pursuant to s 32 of the Criminal Law (Sentencing) Act 1988:
(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 principles relevant to fixing a non-parole period
The Court of Criminal Appeal recently considered the procedure by which a non-parole period is fixed pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 in R v Roberts.[4] Kourakis CJ, Blue and Stanley JJ stated in part:[5]
[4] [2016] SASCFC 41.
[5] [2016] SASCFC 41, [15]-[27].
The authorities in relation to the operation of s 32 establish certain principles. First, s 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 his or her sentence.[6] Secondly, 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) (which is not relevant to this matter).[7] Thirdly, when fixing a non-parole period, the court must take into account time already served as required by s 32(7)(a) of the Sentencing Act.[8]
[6]    R v James (1990) 158 LSJS 7; R v Beauregard-Smith [2001] SASC 69; (2001) 79 SASR 408.
[7]    R v Glynn [2000] SASC 323, [14]-[15].
[8]    R v Greenwood [2000] SASC 204, [23].
…
The fixing of a non-parole period serves a different function from the setting of a head sentence. In R v Miller,[9] Doyle CJ observed that, in accordance with what was said by the High Court in R v Shrestha,[10] in fixing a non-parole period it is appropriate to give greater weight to rehabilitation than would be the case in fixing the head sentence. This recognises the different purpose to be served by the fixing of a non-parole period as against a head sentence[11] and the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.[12]
[9] [2000] SASC 16, [42]; (2000) 76 SASR 151, 160.
[10] [1991] HCA 26, (1991) 173 CLR 48, 68–69.
[11] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531; R v Moyle (1996) 186 LSJS 462, 465.
[12] R v Miller [2000] SASC 16, [42], (2000) 76 SASR 151, 160.
The purpose of fixing a non-parole period is to determine the optimum time when the prisoner will respond to parole and make the most of the opportunity it allows for rehabilitation after serving the minimum period necessary to meet the punitive and protective purposes of punishment. It is for that reason that relatively more weight is given to rehabilitation in fixing the non-parole period. The starting point for fixing a non-parole period is the length of the head sentence. It is a different discretionary exercise to fixing the head sentence, notwithstanding that it is informed largely by the same considerations. Nonetheless the discretion demands a balancing of competing sentencing objectives.
…
In Foley v Police,[13] Kourakis J identified the relevant considerations in fixing a non-parole period for a term of imprisonment which includes a period of unexpired parole as:[14]
[13] [2008] SASC 338.
[14] [2008] SASC 338, [25].
·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, or the need to deter the offender and others from breaching a designated condition.
·The need to deter the offender and others from breaching parole.
…
These authorities demonstrate that, subject to one additional factor, the principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence apply also to the exercise of the sentencing discretion in fixing a new non-parole period pursuant to s 32(3) after cancellation of a prisoner’s parole as a result of a breach of parole. The additional factor is that, in fixing a new non-parole period in these circumstances, it is necessary that the court also have regard to the gravity of the breaching conduct that has resulted in the cancellation of the parole.[15]
…
As was observed by Kourakis J in Foley v Police,[16] in R v Wilson[17] the offender breached parole by breaching a designated condition. In those circumstances, it was understandable that particular attention needed to be given to the seriousness of the breach. The gravity of the breaching offence may inform both the need for deterrence and the prospect of rehabilitation in fixing a new non-parole period. At least two factors affecting the fixing of the non-parole period when parole has been breached suggest that it will be a higher proportion of the head sentence in those cases than otherwise. First, the breach itself will usually reflect adversely on the prospects of rehabilitation. Secondly, the sentencing court must have regard to the need to deter parolees from breaching their parole. However, these considerations are merely factors that must be weighed in the balance in the exercise of the sentencing discretion. This is consistent with the approach Stanley J took in R v Earley.[18]
[15] Foley v Police [2008] SASC 338, [22].
[16] [2008] SASC 338, [24] and [26].
[17] [1999] 203 LSJS 459.
[18] [2014] SASC 202.
Does s 32(5) of the Criminal Law (Sentencing) Act 1988 apply?
In cases where the person is subject to a sentence of life imprisonment, s 32(5) of the Sentencing Act provides in part:
(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;
The question arises as to whether this provision applies in the present case. A not dissimilar situation arose in R v Brady, where the applicant had served a non-parole period for murder (which was imposed prior to the enactment of s 32(5) of the Sentencing Act), been released on parole which was later revoked for subsequent offending. Vanstone J considered the provisions to operate as follows:[19]
[7] Of more immediate concern is the approach that I should take to the issue of setting a non-parole period. In R v Earley [2014] SASC 202 Justice Stanley dealt with an application which has something in common with the current one. His Honour was persuaded by submissions on both sides, which were united in saying that he was obliged by s 32(5)(ab) of the Criminal Law (Sentencing) Act 1988 (SA) to set a non-parole period of at least 20 years and to backdate it to the time of the commencement of Mr Earley’s original sentence. Understandably, that is what his Honour did. Stanley J was apparently not referred to the earlier decision of R v Marshal in which Justice David pointed to the illogicality of proceeding in that way and suggested that s 32(5)(2b) should not be interpreted as applying to persons who had already been sentenced to life imprisonment and had served a non-parole period. His Honour’s view was that the subsection should be seen to be relevant only to those who had never received a non-parole period for a life sentence. With great respect to Stanley J, I prefer the approach that David J took.
[8] Section 32 of the Sentencing Act deals with the court’s duty to set a non-parole period. Section 32(1) sets out the general obligation. Sections 32(2) and (3) address the situation applicable here. …
[9] In my view s 32(2) rather than s 32(5)(ab) governs this situation. The new non-parole period is to be set having regard to the new sentence and “the balance” of the previous (life) sentence. It is not set in relation to the whole of the sentence of life imprisonment, as contemplated in s 32(5)(ab). I am reinforced in my view by the following. Were the Earley approach followed, the court would face the unattractive prospect of setting at least a 20 year non-parole period in relation to a sentence for which a man had already served a (previously set) non-parole period. To backdate the new non-parole period to the date when the original one commenced would create a fiction, of which one vice would be that it would cover periods of time when the applicant was in the community on parole.
[10] In my opinion, any non-parole period fixed here should be fixed in relation to what is seen to be the balance of the outstanding life sentence for murder (taking into account the non-parole period extensions on account of the other offences, totalling 17 months) and the sentence imposed in the District Court for aggravated causing harm with intent.
[19] (2015) 123 SASR 294, [7]-[10].

With respect, I agree with Vanstone J. I will adopt that approach.
The applicant’s present suitability for parole
Support within the ommunity
In support of this application, the applicant called Ms Sophie Kukianis to give evidence. Ms Kukianis has been in a relationship with the applicant since approximately 2002, and the applicant lived with her when he was released on parole for the second time, in 2012.
Ms Kukianis gave evidence as to the support which she has provided to the applicant (and intended to continue to provide), including transporting him to work when he did not have a licence, and maintaining his secured loans while he has been in custody. She gave evidence that, although she has since moved to Wallaroo for work purposes, if the applicant does not wish to stay with her there, he could stay in her property at Port Augusta and she would visit him on weekends.
Ms Kukianis made it clear that, although she would support the applicant, she does not turn a blind eye to the applicant’s breaches of parole:
Q     So you have been engaged for a while to be married, have you?
A     Yes. James was still in custody at that time.
Q     You indicated something with your left hand, are you wearing an engagement ring?
A     Yes, I am.
QAnd being quite frank about it, if all goes well in terms of Mr Fricker being released on parole again, would you see it as a high probability, medium probability, low probability that you would in fact live together and become married?
AMedium. I said to James if he ever went back inside that that would be it, but I’ve not kept that promise. So I would say that it would be medium to high. I’ve tried to be – anyway.
Q     Continue.
ANo, no. I’ve tried not to let James know to set any expectations. I’ve tried to make him feel that the probability would be lower than it really is.
Q     In other words he has got to clean his act up?
A     Yep.
Q     And if he doesn’t, then that might be one time too many for you?
A     Yep.
And perhaps most importantly, she indicated that she too had gained further appreciation for the seriousness of the applicant’s breaches:[20]
QGiven that you have heard the submissions before the court this morning and the matters that have been raised about the parole breaches, do you have any confidence that if he is released again into the community that he will be able to comply with any of the conditions of parole that are imposed on him?
AI seriously and genuinely believe that James did not – and I don’t think I did either, I understand now how severe the consequences could be of his breaches, so – and I believe that once James – I believe he reached a give-up stage, where it was ‘Oh no, I’m in trouble now and no matter what I do now is going to make any difference’ as well. So after he first got in trouble, and I don’t even know when that is, so I don’t think – I think he’s learnt his lesson and I’d like to say, I mean, I know the comment is you could say ‘Why didn’t he learn it last time?’, but I really think that once he’d been out in the community for a while and seeing what other community people do, that he just kind of forgot that he’s different, that he forgot that he can’t have a drink here and there socially. I forgot that he can’t have a drink here and there socially. It had been three years. I think that – yeah, I’m confident that he will hopefully now realise that, you know, he is different to everyone else. He is not like everyone else in the community and he’s not going to get away with having a drink or, you know, making a mistake, that for him the consequences are far graver than a mistake that anyone else might make.
[20] T44-45.
I accept the evidence of Ms Kukianis. I consider her to be a credible witness and a valuable support person for the applicant.
On the other hand, it is clear that the applicant has negative familial influences in his life. As to the circumstances of the latest parole breaches, his counsel submitted:[21]
He decided to visit family in metropolitan Adelaide and that appears, of course, with the benefit of hindsight, to have not been a good decision and not a good environment. Some of his siblings have issues with alcohol misuse and some drug use was occurring amongst his extended family members and associates.
Your Honour will see that the breaching offences, the alcohol use, occurred on 6 December right around that period of time whilst he was staying with family and Mr Fricker describes the situation where, even though he knew what was at stake, he found it hard to socially decline their offer of alcohol and he, in effect, lapsed.
[21] T23.
Ms Kukianis gave similar evidence:[22]
So I knew he went to Adelaide and I know his family is not the best influence but, yeah.
[22] T36.
It is critical that, when on parole, the applicant must remain focused on maintaining his positive relationships, and distancing himself from the negative associations which ultimately resulted in his return to custody.
Rehabilitation thus far
The applicant’s response to parole on his second opportunity was, while far from unblemished, vastly improved upon his response to his initial parole from 2001 to 2005. It is evident that the applicant has made significant progress in his rehabilitation from 2005 onwards. It appears that the applicant heeded Nyland J’s warning on 4 November 2005 concerning future sentencing as “a serious repeat offender”, as he has not been sentenced for any violent offending since that time.
Further, the parole board described the applicant’s conduct in custody from 2006 to his parole in 2012 as follows:
During his first period of imprisonment he consistently provided negative urine samples from February 2006. He was described as a polite and courteous prisoner who was compliant with prison rules. He undertook a number of core programs including the Violence Prevention Program and the Medium Intensity Alcohol and Other Drugs Program.
… He was transferred to low security. He was not using illegal drugs. He received a good report post-treatment from the Moderate Intensity Alcohol and Other Drugs Program.
However, although the applicant may be well on his way to rehabilitation in respect of his proclivity to violence, he still has continuing substance abuse problems. These problems date back at least as far as 1984, when he was convicted for possessing a drug of addiction, and the use, possession and trafficking of cannabis. When Nyland J sentenced the applicant in relation to the substantial offending committed from 2002 to 2005, she referred to substance abuse as an ongoing difficulty for the applicant, and a contributor to his offending.[23]
[23] Sentencing remarks of Nyland J, 4 November 2005, p 11.
Notwithstanding the programmes in which the applicant had participated while in custody, he ultimately relapsed somewhere in his second year of parole in 2013. The parole condition breaches stemmed from the ingestion of alcohol, methamphetamine, amphetamine and cannabis. As the parole board noted 24 May 2017:
Mr Fricker has had many opportunities but he has not taken advantage of two previous paroles. Substance abuse remains a problem for him and he will need to work seriously to convince any future Parole Board that he can, once again, be trusted back into the community.
Ms Kukianis is alive to the substance abuse issues that the applicant continues to face as appears from the following passage in her evidence:
QWere you working with him in any particular way, whilst you were in a relationship, to address the issues that you understood him to have?
AI didn’t see myself as James’s counsellor but as a support person so James was quite open and frank with his parole officer and he, earlier on, did discuss issues with her. I didn’t – I didn’t actually see that James had any specific issues that needed dealing with. So, in terms of substance abuse, he – he did talk to me about the pressures at work. Like, everyone would say ‘It’s beer o’clock, it’s time to go home’, and all of the social pressures in the community around alcohol and drinking and when you finish work and he did struggle with some of them. You know, team staff meetings where they might have had a beer, he couldn’t participate in those. And so I actually thought he was doing quite well in talking about and recognising the social pressures of substance abuse. So I think that he was dealing with his issues quite well in that he was keeping himself busy, he seemed to be – he was networking with the community. I had lived there for 10 years and I didn’t know anyone but whenever we went to the shops, everyone would stop and talk to James and give him the time of day like, and this included Correctional officers. So he was well liked within the community. You know, there were people that approached me saying ‘Can we go and see James? When’s he coming out?’, since he’s been locked up as well. So I actually – my opinion was he did extremely well socially as well. Yeah, so I was a bit surprised by some of the things.
QWhen you became aware of the type of breaches that were alleged against him, had you, prior to that, considered any need for any external counselling or any other type of rehabilitation?
ANo. I didn’t see him as having an out-of-control substance abuse problem that would need anything to be addressed. So – I – I think that I probably rationalised to myself, as well, the charges, they weren’t high quantity of drinking. To me they indicated one or two drinks even though, I know – given that he didn’t respect the law in that he was on a provisional licence and on parole and shouldn’t have had anything, they didn’t have high readings that would indicate to me to be concerned about excessive alcohol use.
Ms Kukianis also gave evidence as to the further changes she would make to her own habits out of a willingness to support the applicant when on parole:[24]
[24] T45.
QIf Mr Fricker were to be granted another parole, and if that parole once again had a strict no alcohol at all policy, do you think that you could adapt your own situation such as to support him in that requirement of a no alcohol at any time anywhere policy?
A     Yes, I could quite easily remove all the alcohol from the place and not drink at all.
Q     You could abstain?
A     Yeah.
Q     Quite easily?
A     Yes.
QHow do you think you would go on persuading Mr Fricker as to the importance of abstaining completely at home and elsewhere?
AI would hope, having spent the last 17 months in custody, makes him realise that he needs to abstain. He’s a grown man and he ultimately makes his own decisions, I can’t make decisions for him. However, I can just continue to support him by reminding him of his obligations, making sure that I don’t actually act as a negative influence by consuming alcohol or having alcohol in the house. I mean, I can’t watch him, my job isn’t to watch him 24/7 or make decisions for him, but he’s not silly.
The demeanour of Ms Kukianis when giving the above evidence was such that I do have confidence that she can, and will, herself abstain from drinking for the good of the applicant. Beyond that, it is a matter for the applicant.
Employment
At the time of the hearing of this application on 29 May 2017, it was thought that the applicant would have the benefit of continued employment at the Port Augusta Mitre 10, where he worked for the three years prior to his latest arrest. However, on 31 May 2017, the court received a letter from the Managing Director of this Mitre 10, Mr Duregon, as follows:
Unfortunately at the moment there are no positions of employment available within the Company. Due to the downturn in sales, staff numbers will not be increased and as staff members leave they will not be replaced unless we can not trade without that particular position.
Mr Duregon was, however, at pains to give credit to the applicant for his good work ethic:
During his employment we found James to be punctual, hard working, self motivated and presented good customer service skills.
This positive reference aligns well with the parole board’s report, which described the applicant’s attitude to work while in custody from 2006 to 2012 thus:
The Parole Board noted his progress in prison. He was working in the garden unsupervised and was receiving excellent reports.
Further, Ms Kukianis, gave a written reference as follows:
Since James’ release on parole James has made every effort possible to secure employment. He completed a course at TAFE in Mining and gained his forklift ticket. Despite the barriers faced with having a criminal record, lengthy incarceration meaning he had no recent employment history or references, no qualifications and no transport James secured employment with Clean Seas Tuna as a fish process worker. Unfortunately, after about 2 months the company closed down. James continued to be persistent with cold canvassing for employment and shortly after gained a position as a salesperson/forklift driver with Mitre 10, Better Home Supplies at Port Augusta. He held this employment for over 3 years up until his current incarceration. James worked full time hours including weekend work. At times when he did not have transport to get to and from work, James did not let this get in the way of his employment, he caught buses and on occasion even walked the 10km each way to and from work. He refused to take time off work to have his hernia repaired until he was in so much pain he had no choice. I have been pleased with his hard work, perseverance and demonstration of an excellent work ethic. I doubt that there would be many in James’ situation, with his difficult upbringing, personal barriers and lengthy incarceration, that would have achieved what he has with regard to being a productive member of the community.
Ms Kukianis gave similar oral evidence:
So when I was there, I was able to give James a lift when he didn’t have a licence. When I wasn’t there, James would walk when he needed to. Sometimes another colleague from Mitre 10 who lived in Stirling North would assist with a lift but that gentleman moved out of Stirling North so couldn’t assist any longer. He would catch buses. He would catch taxis. He tried a bicycle once but that just – that didn’t handle the distance. So whatever means possible that he could find, he would use to get to and from work.
However, as strong as the applicant’s work ethic appears to be, a potential lack of employment is of some concern as his inability to work appears to have been a contributing cause to his latest breaches of his parole conditions. Counsel for the applicant submitted that:
It was a situation where, as I understand it, around December 2015, Mr Fricker was suffering a hernia and he underwent surgery. As a result of that illness or that difficulty, he was unable to perform the work duties that were required of him and he was on extended leave for 10 weeks.
…
It was during that period of time when he wasn't well and he wasn’t working that he lost the routine and the regime that he had worked so hard to create for himself and he describes being – really through no fault of his own, other than the fact that that routine was lost – a bit aimless. The lack of routine and direction made him feel down and he describes feeling depressed.
And later:
Getting back to the point of as far as what happened in December; he obviously was out of his normal routine. That routine had been continuing for some time and it was clearly a positive one whereby he was able to obtain and maintain employment for a relatively lengthy period of time and hadn’t been committing any further offences by way of dishonesty, significant driving offences or anything of a violent nature. So, in my submission, those are the positives. And the extenuating circumstances, if your Honour finds there were any, is, in effect, that it was his sickness, his physical illness of the hernia and the time off that was directly as a result of that, that, in effect, led to him at that point going back to old ways, dropping his bundle and not being able to maintain that regime which obviously assisted him.
I am concerned that there may be certain parallels between this latest offending and the first year of the applicant’s 2002 parole, which was, in the words of Nyland J, “relatively uneventful, although problems were encountered as a result of your difficulties in finding employment”.[25] However, the Court has not been provided with greater detail in respect of that period in the applicant’s life and I cannot take that matter further.
[25] Sentencing remarks of Nyland J, 4 November 2005, p 11.
I conclude that it appears reasonable to expect that the applicant will be able to find work soon after his release on parole owing to his eagerness to do so, taken with his additional experience and qualifications gained during his last period on parole from 2012.
Disposition of the application
I note that s 32(5) of the Sentencing Act imposes a discretion upon the sentencing Judge to decline to fix a non-parole period. Neither the prosecutor nor the parole board opposed the setting of a non-parole period and in the circumstances of the case, I consider it would be inappropriate to decline to do so.
In fixing a non-parole period, I have regard to all of the facts and circumstances before me. Without being exhaustive, they include:
-the circumstances and seriousness of the original offence of murder, and the antecedents of the applicant as at that time;
-the protection of the community from violence at the hands of the applicant;
-the time which the applicant has spent in custody serving his life sentence (excluding the non-parole period extensions on account of other offending), and the balance of the life sentence which is to be served;
-the whole of the applicant’s offending committed while in custody and on parole, not only insofar as it reflects badly on the applicant but also insofar as it tends to demonstrate an improvement in refraining from resorting to violence;
-the circumstances and seriousness of the breaches of the applicant’s parole which led to the current cancellation of parole;
-the need to deter the applicant and others from breaching parole;
-the applicant’s substance abuse problems, and the causal connection between them and the present parole breaches;
-the applicant’s demonstrated good work ethic and his employment prospects;
-the support mechanisms available to the applicant including in particular the support of Ms Kukianis; and
-the applicant’s general suitability for parole and his prospects for rehabilitation.
In calculating a new non-parole period I take into account that the applicant’s parole was formally cancelled by the parole board on 2 February 2016, but that he had been in custody since 17 January 2016, a period of about two weeks.
In all the circumstances, I fix a non-parole period of 19 months to commence from the date of the cancellation of his parole on 2 February 2016.